Family Law

Question 1

Saleh v Saleh *

Answer 1

No marriage schedule = no registration and therefore the marriage could not be ‘saved’ under s.23. In this case Lord Clyde explained the types of situations in which s.23 could save a marriage:

a. Where the schedule was produced prior to time limits
b. Where the person who carried out the marriage was not an approved celebrant
c. Where the marriage schedule was not produced at the ceremony provided it was subsequently signed and registered

Question 2

Sohrab v Khan

Answer 2

there was no marriage schedule at the time of the marriage. It was held that s.23A cannot save a marriage where there was no marriage schedule in existence at the time of the ceremony

Question 3

Nichol v Bell

Answer 3

Criteria for marriage by cohabitation with habit and repute: there must be cohabitation as man and wife. In this case the courts held there was despite the man claiming that the woman was simply his housekeeper despite the fact that they had lived together for more than 20 years and had a son together

Question 4

Kamperman v McIver

Answer 4

Criteria for marriage by cohabitation with habit and repute: Cohabitation must endure for a reasonably long time. In this case it was held that 6 1/2 months was not necessarily insufficient and it was suggested that it was the quality not the quantity of the time together that matters.

Question 5

Low v Gorman

Answer 5

Criteria for marriage by cohabitation with habit and repute: parties must be free to marry. In this case a woman formed a relationship with a married man. The couple were known to neighbours as married but some relatives knew the truth. Mr G divorced his wife 5 years after they started living together but their relationship broke down 10 months later. The court held that there was no marriage by cohabitation with habit and repute because time only counts when there is no legal impediment to the marriage
It was also held in this case that the repute that the couple are husband and wife must be general, unvarying and undivided.

Question 6

S v S

Answer 6

Criteria for marriage by cohabitation with habit and repute: parties must be free to marry. The court held that it would be hard to establish a marriage by cohabitation with habit and repute where the relationship had begun illicitly

Question 7

Dewar v Dewar

Answer 7

Criteria for marriage by cohabitation with habit and repute: couple must be reputed to be husband and wife. In contrast to Low v Gorman, in this case it was held that it does not matter if some people know the couple are not married

Question 8

Burke v Burke

Answer 8

A marriage will be void where one or both of the parties have already entered into a valid marriage. In this case a man was married and living with his wife. He then married another woman without telling her that he was already married. When she found out she sought a declaratory of nullity which was granted and damages for entrapment into marriage.

Question 9

McLeod v McLeod

Answer 9

This revolves around error as ground on which a marriage will be void. In this case it was held that a woman who married a man who claimed to be a soldier in the black watch regiment, and then deserted her could not have her marriage declared void on the basis of error as to the identity of the person as she had intended on marrying the man in front of her.

Question 10

Valier v Valier

Answer 10

An error or mistake must be as to the marriage ceremony itself and not about it’s effect. In this case a marriage was declared to be void on the ground of error because an Italian man married a woman he barely knew without being aware he had gone through a wedding ceremony

Question 11

Lang v Lang

Answer 11

There is a heavy burden of proof placed on the person seeking to prove the marriage is void and it would have to be a serious or severe condition to meet this burden. In this case a man married a woman who had been subject to supervision in a unit prior to the wedding. He alleged that she was incapable of understanding and giving consent but failed to prove this.

Question 12

Johnston v Brown

Answer 12

it was held that intoxication must be severely before capacity is lost. The pursuer in this case was granted a declaratory of nullity because at the time of the ceremony, and for three days after it, she was severely intoxicated.

Question 13

Buckland v Buckland

Answer 13

it was held that duress exists when there is unlawful pressure involving force or fear that overcomes a person’s will. In this case a man was falsely accused of a crime in Malta and told that if he married he would not be prosecuted. The UK courts held that this was duress.

Question 14

Mahmood v Mahmood

Answer 14

Marriage arranged between two families without the young woman’s knowledge. She was later pressured into the marriage by her parents who threatened to cut her off financially and send her abroad. However a few month later she applied to have the court declare the marriage null. Her husband argued that because the ordinary person would not have been overcome by these threats the declarator should not apply. The courts however held that it was a subjective test but there must be more than a threat of disapproval

Question 15

Orlandi v Orlandi / Ahkram v Ahkram

Answer 15

the parties entered into civil marriages in the belief that they would only be truly married after a religious ceremony. The marriages where strictly for immigration purposes and there was no consummation or cohabitation. A declaratory of nullity was granted in both cases.

Question 16

Hakeem v Hakeem

Answer 16

the parties to a civil marriage planned to follow the civil ceremony with a religious one. They celebrated the civil ceremony with a party. It was held by the court that this was a true marriage and no declaratory of nullity was granted

Question 17

Corbett v Corbett

Answer 17

one party was born male but had gender reassignment surgery and was thereafter living as a woman. She had a passport in her new name and was a woman for the purposes of national insurance. When her marriage subsequently failed her husband argued that it was void as she was not a woman. The judge used the biological definition of sex and thus the annulment was granted. This decision was heavily criticised at the time

Question 18

Bellinger v Bellinger

Answer 18

the UK courts held that a transgender person had the right to marry someone of the opposite sex to their reassigned gender

Question 19

CB v AB

Answer 19

The impotency must be permanent and incurable at the time of the marriage in relation to the spouse to make a marriage voidable.
A personal bar exists where the pursuers actions are such that it would not be reasonable to grant a declaratory of nullity

Question 20

J v J

Answer 20

Impotency is defined as failure to have complete and full sexual intercourse

Question 21

WY v AY

Answer 21

Impotency may have a physical cause

Question 22

G v G

Answer 22

Impotency may have a psychological cause

Question 23

F v F

Answer 23

Either spouse may raise an action based on impotency, whether they are the impotent one or not

Question 24

M v W

Answer 24

The impotency may only be curable with help from the spouse which they may not be willing to provide. The court in that case held that the impotency was incurable in the circumstances

Question 25

L v L

Answer 25

A personal bar exists where the person knew about the impotency and accepted it before the marriage

Question 26

Munro v Munro

Answer 26

Mrs M sued her husband for aliment. At the time Mr M was living with another woman and, when the court was satisfied that there was a valid claim, they took into account contributions from Mr M’s cohabitee

Question 27

Bell v Bell

Answer 27

Initially it was very hard to get an exclusion order under s.4 of the Matrimonial homes (family protection) (Scotland) Act 1981. In this case it was held that test was one of necessity and thus the threshhold was high and severe

Question 28

Smith v Smith

Answer 28

Initially it was very hard to get an exclusion order under s.4 of the Matrimonial homes (family protection) (Scotland) Act 1981.In this case it was held that is very unlikely that an exclusion order will be granted unless the pursuer was living in the matrimonial home at the time of their application

Question 29

McAfferty v McAfferty *

Answer 29

1

Question 30

Pyatt v Pyatt

Answer 30

Any savings or earnings made from the pudent investment of housekeeping allowance should be split 50:50 between the husband and wife

Question 31

McLennon v McLennon

Answer 31

A woman who had become pregnant as a result of artificial insemination has not committed adultery regardless of whether her husband knew about the insemination

Question 32

Dennis v Dennis

Answer 32

Although a woman admitted that she had intended to have sexual intercourse with a man who was not her husband, there was no penetration and therefore no adultery

Question 33

Dennis v Dennis

Answer 33

Although a woman admitted that she had intended to have sexual intercourse with a man who was not her husband, there was no penetration and therefore no adultery

Question 34

Bennet-Clark v Bennet-Clark

Answer 34

Mrs B-C brought an action for divorce on the grounds of adultery and provided evidence that there had been a two year affair through correspondence and hotel receipts, however as they had resided together in separate rooms there was no sufficient proof of a sexual relationship.

Question 35

Currie v Currie

Answer 35

A pregnancy that supposedly lasted 11 months after a woman’s husband left on military service overseas was held to be of unprecedented length and thus a divorce was granted on the basis of adultery

Question 36

Hunter v Hunter

Answer 36

A classic example of where the defence of lenocinium would be where a husband had encouraged his wife to take up prostitution

Question 37

Gallagher v Gallagher

Answer 37

Defence of lenocinium failed because although the wife had committed adultery, there was evidence that her husband had been encouraging her to do something so that he could divorce her

Question 38

Fullerton v Fullerton

Answer 38

Mrs F tried to divorce her husband on the grounds of behaviour because his schizophrenic condition made him lose all interest in his wife and children, and sleep at all hours of the day. The effects of his symptoms were not held to be sufficiently weighty or grave and thus Mrs F was unsuccessful.

Question 39

O’Neil v O’Neil

Answer 39

The behaviour may be passive and does not have to be intended to harm the spouse. In this case the husband was an excessive DIY enthusiast and a divorce was granted despite the fact that the behaviour was not directed or intentional

Question 40

Knox v Knox

Answer 40

It is the behaviour itself that must be unreasonable and not the expectation of cohabitation. In this case a divorce was not granted on the grounds of behaviour

Question 41

Livingstone-Stallard v Livingstone-Stallard

Answer 41

In divorces on the grounds of behaviour the test as to whether the pursuer can reasonably be expected to cohabit is applied at the date of proof, this means that if the defendant has reformed their ways then a divorce may not be granted. This means that any behaviour after the separation but after the divorce can be taken into account. In this case it was held that it was not reasonable for a woman to have to live with someone who had been unreasonably critical of her in both public and private.

Question 42

MacMillan v MacMillan

Answer 42

a woman who could not prove adultery used behaviour as a ground for divorce instead. It was held by the courts that actions short of adultery was likely to constitute behaviour.

Question 43

Mason v Mason

Answer 43

it was held that the refusal to have sexual intercourse more than once a week did not constitute unreasonable behaviour

Question 44

Findlay v Findlay *

Answer 44

a woman raised an action for divorce on the grounds of her husband’s behaviour because he drank to excess, was abusive, and often spent nights away without explanation. The couple had separated by the time the action was raised and the wife was living with another man which raised a question mark as to why she wanted the divorce. There has to be a causal link between the husband’s behaviour and the wife’s wish for a divorce. In this case it was held that there was because but for the husband’s abuse, his wife would not have started a new relationship.

Question 45

Hastie v Hastie

Answer 45

a wife made a false accusation that her husband had been unfaithful and committed incest with his niece. Although it was unlikely that the conduct would be repeated, the court held that wife’s conduct had been so destructive that it was unreasonable to expect the cohabitation to continue.

Question 46

Boyle v Boyle

Answer 46

It was held that a defender could withhold consent to a divorce for any reason (including having to pay aliment) or for no reason at all

Question 47

MacLellan v MacLellan

Answer 47

it was held that a croft the husband had bought prior to the marriage was not part of the matrimonial property and the wife had no rights to it despite having lived there for 26 years as it is the intention at the time of acquisition that matters.

Question 48

Latter v Latter

Answer 48

In this case it was held that gifted or inherited money loses its protected status when it is converted into other property. Mrs Latter’s family purchased a house for the couple, however the money was paid directly to the solicitor and registered in her name only. This was not held to be matrimonial property as the house itself was considered to be the gift. Additionally in this case it was held that shares could be considered matrimonial property if they had been reconstituted during the marriage.

Question 49

Watt v Watt

Answer 49

The wife was entitled to less than a 50% share of the matrimonial home because because a portion of her husband’s business interests could be tracked directly back to interests owned prior to the marriage

Question 50

Banks v Banks

Answer 50

was disagreement as when the couple ceased to cohabit as husband and wife as the husband was often away on business. The court held that the relevant date was in 1998, the last time the husband had stayed overnight in the matrimonial home, as this was also when the wife changed her bank account.

Question 51

Petrie v Petrie

Answer 51

Damages as matrimonial property. In this case the injury occurred before the marriage and the damages were awarded after the marriage. Therefore the money awarded in damages would not count as matrimonial property

Question 52

Skarpoos v Skarpoos

Answer 52

Damages as matrimonial property. In this case the injury happened during the marriage and before the separation, but the damages were awarded after the separation. The court held that the money awarded in damages was matrimonial property.

Question 53

Wallace v Wallace

Answer 53

In this case a couple co-owned a home and the home increased significantly in value after the couple separated. The husband sought a property transfer order meaning that he would get the benefit of the increase in value. The sheriff made the order at first instance and warded the wife compensation, however this was rejected by the Inner House and the House of Lords who both held that the increase in value did not count as matrimonial property.

Question 54

Cunniff v Cunniff

Answer 54

This case deals with financial provision on divorce. It made it clear that s.9(1)(a)- fair sharing of matrimonial property - is the principle principle. If you choose to answer a financial provision question then you must make sure that your analysis reflects this
S.10(6) of the 1965 act gives a non-exhaustive list of special circumstances that can justify unequal sharing

Question 55

Gow v Grant

Answer 55

Leading case on cohabitants rights under the 2006 act. Decided after a problematic case M v S where the equal sharing principle was wrongly applied to cohabitants.
Mr G and Ms G entered into a relationship and Ms G moved in with Mr G who encouraged her to sell her own house which she did and to give up her job. Ms G spent some of the money she had received from selling the house on the couples living expenses, holidays and paintings, as well as contributing more than an equal share of the money used to purchase a time share in their joint names. Ms G sought an order for the payment of a capital sum which Mr G maintained she was not entitled to. The Sheriff at first instance decided Ms G had been economically disadvantaged and awarded her £38,000. This payment was reversed by the Court of Session and then reinstated by the Supreme Court. Lord Hope cautioned against too precise a mathematical approach. The CoS had applied too much of an economic consideration and although fairness is a guiding principle, it does not mean equal sharing. The court should not focus on the intent of the applicant but instead on its effect. If the effect is that the applicant suffered disadvantage then this does not need to be the intent. Lord Hope also emphasised that the court has a wide discretion.

Question 56

C v S

Answer 56

Adoption order granted to commissioning parents despite the fact that the surrogate refused to consent and the fact that the commissioning parents had given the surrogate money. Welfare principle

Question 57

Smith v Greenhill

Answer 57

a case that was decided under the 1990 act, the pursuer Mr S claimed to be the father of a married woman’s child despite the husband’s registration as the child’s father. The child’s mother and her husband refused to consent to a DNA test on behalf of the child however the court decided not to draw an inference from this. This is because there was not enough evidence to rebut the presumption that Mrs G’s husband was the father.

Question 58

Doherty v McGlynn

Answer 58

In this case a man wanted to defend his paternity and the court held that the presumptive father had a right to consent if he is seeking to prove his own paternity.

Question 59

Osborne v Matthan

Answer 59

The child’s welfare however, will tend to prevail over any other interest. This is illustrated in this case where it was held that a child should remain with a foster parent after her mother was released from prison.

In this case the court also considered whether a child of Caribbean origin would have difficulty growing up in a white Scottish Family. Court accepted that the child may face difficulty but she should remain with her foster parents because of concerns about her welfare if she should return to Jamaica with her mother. Regular contact provisions were however put into place.

Question 60

Shields v Shields

Answer 60

Deals with court orders relating to children under the Children (Scotland) Act 1985. Mother sought a residence order and a specific issue order to taker her son to Australia. Sheriff failed to ask the child’s views on the matter and an appeal was allowed based on this
Case is important because it underlines the importance of asking a child’s opinion

Question 61

Russell v Russell

Answer 61

child had negative feelings towards her father because of her mother’s influence. It was held that a contact order should not be granted because the basis for her distress did not matter, only that she was distressed

Question 62

Perendez v Sim

Answer 62

the court chose to regard the views of the two children as of little significance because they had been so strongly influenced by their mother. Additionally while the mother alleged abuse, there was no evidence of this.
Also as the father was a Greek Cypriot who applied for a contact order when his children’s mother moved them to Scotland without his knowledge. It was held that the children’s mixed heritage made it even more important for them to have contact with their father.

Question 63

Johnson v Johnson

Answer 63

The court will take into account the views of the child when deciding on their residence. In this case there were 4 children, all of whom were asked where they would like to live. The eldest two chose to live with their mother, while the younger two decided to live with their father and grandmother.

Question 64

Brixley v Lyrus

Answer 64

Residence was originally awarded to the father but after several appeals the House of Lord’s awarded residence to the father saying that ‘giving residency of a young child was neither a presumption or a principle but rather a recognition of a widely held belief’.
This is problematic because:
1) It perpetuates stereotypes about mothers
2) Effectively implies that fathers are less nurturing than mothers
3) There is a risk that the court will place greater weight on the fact that a child should remain with their mother than on welfare concerns
4) It is a step back in the law from the case of Hannah v Hannah where it was held that ‘it is not nature, but the welfare of the child that is the material matter’

Question 65

Early v Early (1989)

Answer 65

part of a fathers argument for custody of a child was that his mother was in a same-sex relationship. The child was happy and settled where he was and the father had three previous convictions for child neglect. Court decided child should live with his father so that he would have a suitable father figure and because he may face difficulties if peers found out about his mum’s relationship.
If tried today this result would probably be in violation of the ECHR

Question 66

T, petitioner

Answer 66

marked a significant change in attitude. This was an adoption case where a man had been in 10y long stable relationship with a male partner. The child was profoundly disabled and the man had the skills to deal with this. The petition was originally refused but Lord Hope later clarified that there was nothing in the Adoption (Scotland) Act to prevent a same sex couple from adopting.

Question 67

M’Clements v M’Clements

Answer 67

Custody given to mother because father was an atheist whereas she could provide a religious upbringing. This would likely be in violation of the ECHR today

Question 68

McNaught v McNaught

Answer 68

the child’s mother was protestant whereas the child’s father was catholic. The mother had agreed in writing that the children would be brought up Catholic and attend R.C schools. The father sought a court order to enforce this but the courts refused but the courts refused on the grounds that it would be detrimental for the children to be brought up in a different religion from their resident parent.

Question 69

White v White

Answer 69

Leading Scottish case on contact. Appealed up to the court of session where it was held that father with PR&R’s and therefore had the right and responsibility to maintain contact.
A person applying for a contact order no longer has to show that it is positively in the best interest of the child. However there is no presumption that it is in a child’s best interest to have contact with both parents.
Furthermore, although there is no technical onus on the applicant to prove that contact is in the best interest of the child, the court will look for some evidence that this will be the case

Question 70

M v M

Answer 70

Mother sought orders to move with her son to Spain. The court did not grant these orders as the move was ill thought out. Lord Drummond set out the issues that will be looked at when deciding on these cases:

The reasonableness of the proposed move abroad (resident parent’s desire or need to move, as child’s stability/security is tied to the resident parent’s stability/security).The motive of the parent wishing to take the child abroad (motive was to prevent contact is looked upon negatively by the court). The importance of contact with the other parent/absent parent in the child’s life (try to encourage contact whenever possible, as this is tied to the child’s identity). The importance of the child’s relationship with siblings, grandparents, or other members of the child’s extended family who are left behind. The extent to which contact is able to be maintained. The extent to which the child may gain from a relationship with family members as a result of the proposed move (facilitate contact with new family members).The child’s views where he or she is of an age to express them. The effect of the move on the child. The effect of refusal of the specific issue order on the applicant. The effect of refusal on the welfare of the child. Whether it is better for the child to make the order than no order should be made at all

Question 71

M v M (2013)

Answer 71

Appeal by father against the granting of a specific issue order allowing the children’s mother to move them to England to live with her new partner. Court clarified that English approach was not applicable in Scotland and that the parents seeking to move a child have a dual burden:

1) to show that removal is in the best interest of the child
2) to show that from the child’s perspective making an order would be better than not

Question 72

K v K

Answer 72

In this case the court had to decide if a other was to have contact after rehab, probation and a psych evaluation. Made the order for 1h p/w at a contact centre because they felt it was not safe for mother to have unsupervised and unrestricted access to the child

Question 73

Re B (a minor) 1976

Answer 73

it was held that the sterilisation of a mentally disabled 10 year old would not be in a child’s best interest

Question 74

Re B (a minor) 1998

Answer 74

it was held that sterilising a child was in that child’s best interests

Question 75

Re B (a minor) 1981

Answer 75

the parents did not want an operation to remove a blockage from the intestine of a child with down syndrome however the court held that the operation would be in the child’s best interest

Question 76

Re A (conjoined twins) 2001

Answer 76

the parents did not want the separation operation to go ahead. If it did not both twins would die but if it did one of them would die. Decision was made by the courts that the operations should go ahead as although it was not in the interests of the weaker baby, a balancing act was applied.

Question 77

Houston, Applicant

Answer 77

a child’s decision is paramount and cannot be overridden

Question 78

Gillick v West Norfolk and Wisbeck Area Health Authority

Answer 78

1) English case but influential in Scotland
2) Do parents need to be informed when a girl under the age of 16 seeks contraceptives from a doctor
3) Lord Scarman – parent’s rights cease when the child has sufficient maturity, intelligence and understanding – Gillick competence