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- The judge had set aside the decree absolute, rescinded the decree nisi, and set aside the certificate of entitlement to a decree made in divorce proceedings between the husband, as petitioner, and the wife, as respondent. The husband had given the date of separation as 2006, which the judge had found to be fraudulent. The husband's appeal from this decision raised the issue of the circumstances in which a court had the power to set aside a decree absolute and, in particular, whether the power existed when it was alleged that a petitioner had advanced a false case when obtaining an undefended divorce as per s 1(1) and (2) of the Matrimonial Causes Act 1973. Moylan LJ stated that the result of the appeal might have been different, had the judge set aside the decree absolute on the basis only of fraud as to the date of separation, but, in his view, the judgment made it clear that the decree was also set aside because of procedural irregularity: the wife's application to rescind the decree nisi had been pending. The judge was plainly entitled to decide to set the decree aside, and also to rescind the decree nisi, set aside the certificate of entitlement and dismiss the petition. Having concluded that the husband's case in support of his petition was false, there was no reason to permit the petition or the orders to stand. The judge had been well placed to determine the wife's application and the orders which he made had been justified by his factual conclusions. Singh LJ and Popplewell LJ agreed. The appeal was dismissed. Judgment, 20/12/2020, free
- The petitioner was seeking a divorce from the respondent. The parties disagreed over whether an alleged marriage ceremony in the 1980s had ever taken place, and whether it should be recognised as a valid marriage in this jurisdiction. This hearing concerned procedural difficulties stemming from a valid marriage certificate not being attached to the petition. HHJ Moradifar noted that there were many reasons why a valid marriage certificate might not be available, and the FPR clearly contemplated such a situation and provided for it. There was nothing in the FPR or the authorities cited which provided for there being no requirement to file an acknowledgement of service or an answer where a petitioner had not filed a valid marriage certificate. The filing of an answer had a material impact on how a divorce petition would be treated by the court, and not filing one was neither inconsequential nor trivial. Where no answer had been filed and served, the petitioner would be permitted to apply for a decree in divorce and associated costs. Given the respondent's continuing failure to engage with and address the procedural defects in his case, the balance of fairness, justice and proportionality demanded that the petitioner’s application be granted. The case would be listed for a pronouncement of a decree nisi. Judgment, 20/12/2020, free
- The claimant and the first defendant had lived together for most of the time between 1990 and 2011, although the first defendant denied that they had been in a committed relationship. Upon being asked to leave, the claimant had asserted a beneficial interest in the property in which they lived, and an agreement had been reached whereby he would be paid £250,000 in return for withdrawing that claim. The money in question had not been paid, but the first defendant argued that the conditions necessary for payment had not been met. Deputy Judge Robin Vos found that, taking all the evidence into account, it was clear that the two of them had a long-term, committed relationship which went well beyond being good friends, but the claimant had not had a beneficial interest in the property. The agreement made was binding and valid, but the defendant's obligation to pay was conditional on him receiving a gift or inheritance from his father, and this had not happened. The claims were thus dismissed in their entirety. Judgment, 17/12/2020, free
- The three-year-old daughter was a British citizen who had lived with the maternal grandmother in India since 2018, after the mother returned to England without her. The father had applied for summary return under the inherent jurisdiction of the High Court. The mother had applied for a specific issue order for "permission to change jurisdiction of the child", which Mostyn J took to be an application for a declaration that the child was habitually resident in India. A preliminary issue arose regarding whether the court had jurisdiction in the case. Mostyn J found as a fact that the daughter was now habitually resident in India and thus there was no jurisdiction in this case under Brussels II article 8. He also found as a fact that at no time up to 26 August 2020 had the mother unequivocally accepted that the English court had jurisdiction to deal with parental responsibility issues concerning her daughter. In his judgment, it would be wholly unprincipled, and a wrong exercise of the court's powers, for him to make orders on the father's application pursuant to the High Court's inherent powers in circumstances where the father had not established jurisdiction under either Brussels II or sections 1–3 of the Family Law Act 1986. His judgment was that the jurisdiction of the court depended on the territorial reach of Brussels II article 10. A question was referred to the Court of Justice for an urgent preliminary ruling: "Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?" Pending receipt of the answer to the question the proceedings would be stayed. Judgment, 09/11/2020, free
- In wardship proceedings, the mother alleged that she and the children (aged 8, 4 and 3) had been victims of transnational abandonment. This was denied by the father, whose case was that the parties had made a consensual decision to relocate as family to Pakistan. He contended that the courts of England and Wales did not have jurisdiction in respect of the children; alternatively, that they should not exercise any jurisdiction because welfare decisions could more conveniently be made in Pakistan. Circumstances meant that the case had to be adjourned, but Mr Richard Harrison QC, sitting as a deputy High Court judge, considered the situation as it stood to be one in which the children were likely to be suffering from emotional harm. It was not tolerable for them to continue to be separated from their parents. It was clear to him that the essence of the mother's case was likely to be correct. The removal of the children to Pakistan had been procured on the basis of a deception, and was thus in breach of the mother's rights of custody, and a wrongful removal for the purposes of Article 10 of Brussels IIa. Having been the primary carer throughout the children's lives, the mother was the person best placed to meet the children's emotional needs. He ordered their immediate return to this jurisdiction. Judgment, 25/09/2020, free
- The Court of Appeal had decided that the daughter must be distanced entirely from a cult with which the mother was involved. The mother had said she would renounce the cult, speak to a therapist and consult a dietician in respect of the child, but the Court of Appeal had found that her undertakings wholly failed to acknowledge the change in approach required were she to maintain care of the child. The case had been remitted to the Family Division for further consideration. At this hearing, Williams J found that the mother's witness statement did not paint a persuasive picture of a significant change in attitude. There was almost no engagement with the harm caused to the child, the process leading to that harm, or the damaging nature of the beliefs and practices of the cult. Were the child to remain in the mother's care, the process of estrangement would continue and the child's relationship with the father would be terminated. The child would live with her father and spend such time with her mother as the father might agree in consultation with the independent social worker involved in the case. Judgment, 20/07/2020, free
- An application brought by the applicant to rectify, as he saw it, a decree of divorce granted in 1997, in relation to a 1994 marriage in London. The hearing proceeded in the absence of the former wife, who had asserted that they were still married as a result of a prior 1993 ceremony involving the same couple in Madrid. Sir Andrew McFarlane, President of the Family Division, was satisfied that the earlier marriage had been a valid one. His order, made under FPR rule 4.1(6), would record that the marriage dissolved in 1997 was the true legal marriage between the couple, namely that celebrated in Madrid on 25 May 1993, and not the later English marriage which had no legal impact on their status. Judgment, 04/06/2020, free
- The Attorney General appealed from a decision to pronounce a decree nisi of nullity following a marriage ceremony which the parties had known was of no legal effect. The petitioner and respondent had reached an agreed settlement, so arguments on matters of law were made on behalf of the first intervener, a petitioner in separate nullity proceedings. The issues were whether there could be ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of section 11 of the Matrimonial Causes Act 1973; and if there could be, whether this had been such a ceremony, currently described as a non-marriage, or whether instead, as Williams J had decided, it had created a void marriage. Sir Terence Etherton MR (the Master of the Rolls), King LJ DBE and Moylan LJ set aside the judge's order as there was, in this case, no ceremony in respect of which a decree of nullity could be granted pursuant to the provisions of section 11. The judge's approach was supported by neither the European Convention on Human Rights nor the United Nations Convention on the Rights of the Child 1990. Judgment, 28/05/2020, free
- The husband alleged fraud and sought to set aside a decree absolute and a financial consent order, both from 2011, in proceedings involving what was described as "frankly shambolic and unacceptable case preparation", leading to the loss of a full court day. Mr Recorder Allen QC found as a fact that the husband had been unaware of the divorce and financial proceedings instigated by the wife. Although Mr Recorder Allen QC had made a finding of fraud, the divorce petition was voidable rather than void, and he declined to set it aside in this case. The financial consent order was set aside and the matter would be listed for a new directions hearing. Judgment, 19/03/2020, free
- A four-year-old girl with British citizenship had been taken to Egypt, and the court had to determine whether she had been habitually resident in England and Wales before then and thus wrongfully removed, and, if she had not, whether the court had jurisdiction to order her summary return. The father contended that the removal was pursuant to the terms of an order made in Beirut. Both parents were Lebanese nationals, and both were currently in England, the child having been left with family members of the father. The mother had accused the father of domestic violence. MacDonald J was satisfied that the child had been habitually resident in this jurisdiction, and that the court retained jurisdiction under the inherent jurisdiction of the High Court. The daughter was a British citizen and both parents were here and intended to remain here, making this the appropriate forum for determining the welfare issues. Returning the daughter from Egypt would create the best chance of her resuming contact with her mother, and there was no one in Egypt with parental responsibility for her. She should be returned from Egypt. The existence of the Beirut order did not prevent this. Judgment, 17/03/2020, free