Court : House of Lords
..... court refused to grant a decree of nullity because the circumstances did not warrant the inference that the defender was incapable of the sexual act, and it refused to grant a decree of divorce on the ground that, assuming refusal of intercourse might be desertion, it had not been persisted in for the necessary four years. ..... undefended action of divorce involves the question whether refusal of sexual intercourse without any overt act of desertion is "desertion" within the meaning of section 1 (1) (a) of the divorce (scotland) act, 1938. ..... appeal cannot succeed unless refusal of sexual intercourse by one spouse, without any other conduct on the part of that spouse of which complaint can properly be made can be desertion within the meaning of section 1 (1) (a) of the divorce (scotland) act, 1938. ..... [his lordship gave the narrative quoted supra, and continued] divorce for desertion was introduced into the law of scotland by the act of 1573, and it may be pertinent to remember that from the first the elements of desertion were diversion by one spouse from the other's company without reasonable cause and remaining in malicious obstinacy continuously for ..... shall have to make some reference later to the preliminary steps which that act required to be taken before an action of divorce on this ground could be brought in the court of session. ..... one question about which i have felt any difficulty is whether the divorce (scotland) act, 1938, must be interpreted in light of the decision in goold .....
Tag this Judgment!Court : House of Lords
..... it seems to me, the courts in adopting the necessity of intention have, inevitably in the cause of justice, had to introduce the notion of presumed intention and thereby to have introduced into divorce law quasi-philosophical difficulties which have cloudedthe law and given to the word cruelty a sense which is not justified by its ordinary significance. ..... granting a decree on the ground of cruelty, distinguished between conduct which was caused merely by the development and manifestation of the wife's character acting so to speak in its own sphere , and wilful and unjustifiable conduct to him which was an intrusion upon and did violence to his ..... under the summary jurisdiction acts, 1895 and 1960, an appeal lies from any order made by a court of summary jurisdiction under these acts to the probate, divorce and admiralty division of the high court, and rules may from time to time be made regulating the ..... by section 22 it was bound in all suits other than those for dissolution to act and give relief on principles and rules which in the opinion of the said court shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical ..... judicature consolidation act, 1925, sections 32 and 103 ..... might be obtained either by the husband or the wife on the ground of adultery or cruelty or desertion without cause for two years and upwards (section 16). ..... mensa et thoro, of which cruelty had been a ground, became relief by a decree for judicial separation (section 7). .....
Tag this Judgment!Court : House of Lords
..... said: i think a jury can always be trusted to do justice where it might be impossible to bring the case strictly within the m'naghten rules, but everybody would say that the man's acts were the acts of a lunatic, and then they quote from the evidence of lord simon who had been in turn home secretary and lord chancellor: i imagine that it would be conceded that the strict rigour of the rules ..... allow the word cruelty to be associated with blame since the consequence would be that in such a case as the present there would, unless and until a divorce could be obtained on the ground of insanity under the matrimonial causes act of 1937 as amended by the divorce (insanity and desertion) act, 1958, be no defence to a suit by the husband for restitution of conjugal rights and no means of obtaining maintenance for the wife so long as she ..... some degree is to be held a necessary element in cruelty, i can see no rational basis for holding that if two persons are in fact equally irresponsible one is to be divorced because his type of insanity does not come within the rules, but the other is to have a defence because his case is covered by the rules. ..... cruelty has been inflicted, the respondent will by the time of the trial be under detention and that in upwards of live years the petitioner may possibly be able to obtain a divorce under section 1 (d). ..... section was breaking away from the old idea of insistence on a matrimonial offence in that it was adding incurable insanity as a ground for divorce .....
Tag this Judgment!Court : House of Lords
..... it is now suggested that the establishment of the divorce court and the act of 1869, allowing parties to proceedings in consequence of adultery to give evidence, have changed the rule of evidence as ..... 's version of the rule, as the decisions have gone hitherto, is applicable (1) in peerage cases; (2) in issues directed by the court of chancery to try questions of legitimacy; (3) in cases where a claim is made to a fund or an estate by or on behalf of persons on whose legitimacy the right to claim depends; (4) in ejectments brought to try a title to land, which depends on the legitimacy of a party or his lessor, in whose light he claims; (5) in cases of derivative pauper settlements, of affiliation cases, and ..... only now to consider whether section 3 of the act of 1869 has affected the validity ..... section of the act ..... " i am myself quite unable to understand how this section can have the effect assigned to it by the court of appeal it makes indeed the parties to any proceeding, instituted in consequence of adultery and the husbands and wives of such parties, competent to ..... that section is in the following terms: "the parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such " parties, shall be competent to give evidence in such "proceeding : provided that no witness in any proceeding ..... the section runs as follows : " the parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such " parties, shall be competent .....
Tag this Judgment!Court : House of Lords
..... this has since been amended to give effect to the council regulations ec no 1347/2000 and ec no 2201/2003, but at the material time, it read as follows: "the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage - (a) is domiciled in england and wales on the date when the proceedings are begun; or (b) was habitually resident in england and wales throughout ..... of the factors governing the formal validity of a will; the domicile of the deceased also governs succession to moveable property and is the sole basis for jurisdiction under the inheritance (provision for family and dependants) act 1975; legitimacy, to the extent that it is still a relevant concept, is governed by the law of the father's domicile; domicile is one of the bases of jurisdiction, not only in matrimonial causes but also in declarations of ..... the answer to this question is, i think, to be found in the distinction to which lord westbury drew attention at the start of his speech in udny v udny (1869) lr 1 sc and div 441, 457: "the law of england, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes ..... whether our courts have jurisdiction, under section 5(2) of the domicile and matrimonial proceedings act 1973, to entertain her divorce petition. ..... pointed out, the point was conceded on behalf of the students in the course of argument .....
Tag this Judgment!Court : House of Lords
..... of the said magazine and the said advertisements to induce readers thereof to resort to the said advertisers for the purposes of fornication and of taking part in or witnessing other disgusting and immoral acts and exhibitions, with intent thereby to debauch and corrupt the morals as well of youth as of divers other liege subjects of our lady the queen and to raise and create in their minds ..... counsel for the appellant argued with force that such cases are distinguishable from the present and other cases where the acts though immoral were not acts of indecency done in the face of the public, but as i do not consider it necessary to explore this aspect of the case i turn, therefore, to the authorities which are more ..... the suggestion goes even further: that the meaning and application of the words deprave and corrupt (the traditional words in obscene libel now enacted in the 1959 act) or the words "debauch" and "corrupt" in this indictment ought to be entirely for the jury, so that any conduct of this kind is criminal ..... do not propose to refer to the cases where individuals have been convicted of the common law misdemeanour of public indecency by exposure or other indecent acts in the face of the public such as that of sir charles sedley, 1 siderfin 168, in the year 1663, or other similar cases ..... section stems from section i of the vagrancy act, 1898, as amended by section 7 of the criminal law amendment act ..... it was contended on behalf of the appellants that there was no such offence .....
Tag this Judgment!Court : House of Lords
..... : separation agreement) [2004] 1 flr 1011, that the husband's supposed bad conduct, falling short of the threshold stated in section 25(2)(g) of the matrimonial causes act 1973, could be taken into account "as a significant counterbalancing factor to the point made on behalf of the husband that this was a short marriage". ..... was that the financial obligations undertaken, mainly by the husband, at marriage endured for life even if the marital consortium came to an end (indeed, before the matrimonial proceedings and property act 1970 came into force, a rich man whose divorced wife married a poorer one might still have to support her in the manner to which she had become accustomed during their marriage). ..... this context that there is also a perception that the size of the non-business partner's share should be linked to the length of the marriage: see, eg, eekelaar, "asset distribution on divorce - the durational element" (2001) 117 lqr 552; and "asset distribution on divorce - time and property" [2003] fam law 828; and gw v rw (financial provision: departure from equality) [2003] 2 flr 108. ..... : "where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a) [periodical payments], (b) [secured periodical payments] or (c) [lump sum], 24 [property adjustment], 24a [property sale] or 24b [pension sharing] above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be .....
Tag this Judgment!Court : House of Lords
..... to await or seek a formal request from the judicial or administrative authorities of another contracting state; and that article 15 of the hague convention and the wider terms of section 8 of the 1985 act, when taken together, contemplate and empower this court to make such a declaration even before there are any proceedings in, or any request from, a foreign contracting state ..... . the courts in this country, i may note, are themselves able to make article 15 determinations with regard to children removed from, or retained outside, the uk by virtue of section 8 of the child abduction and custody act 1985: "the high court or court of session may, on an application made for the purposes of article 15 of the convention by any person appearing to the court to have an ..... judgeneither johnson j (who had requested the determination) nor hogg j (who later ordered the child's return to romania)on 1 august 2005, acting merely on the father's request, ordered that an expert in romanian law be jointly instructed by both parties to cover exactly the same ground ..... under the law as it then stood in romania, termination of marriage through divorce brings joint custody to an end, that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited, and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child's place of ..... . mr james turner qc, on behalf of the mother, has questioned .....
Tag this Judgment!Court : House of Lords
..... the cases cited in reference to wards of court afford no assistance upon any of the points in controversy on this appeal, inasmuch as judges in these cases act as the representatives of the sovereign as parens patriae, and exercise on his behalf a paternal and quasi-domestic jurisdiction over the person and property of the wards for their benefit. ..... it: "extended to all persons and things belonging to the roman church and separate from the laity: to all things relating to pious uses: to the guardianship of orphans: wills of defuncts: and matters of marriage and divorce, all of which were exempted from the civil authority of the sovereigns who were devoted to the see of rome. ..... the high court of justice had no power to hear cases in private, even with the consent of the parties, except cases affecting lunatics or wards of court, or where a public trial would defeat the object of the action. ..... of these classes depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing his majesty as parens patriae. ..... in c v c (1869) lr p and d 640; 38 ljp and m 37; 20 lt 280 in the year 1869, lord penzance, dealing with a case which was not a suit for nullity, made, this observation: "the only cases which have been heard in private are suits for nullity of marriage, and in doing so the court has followed the practice of the ecclesiastical courts, which it is expressly empowered to do in such suits by the 22nd section of 20 and 21 vict .....
Tag this Judgment!Court : House of Lords
..... lord bingham of cornhill observed in r (ullah) v special adjudicator [2004] 2 ac 323, in the passage from para 20 which my noble and learned friend lord hoffmann has quoted, the house is required by section 2(1) of the human rights act 1998 when it is considering whether any article of the european convention on human rights is engaged by anything done by a public authority to take into account any relevant strasbourg case law. ..... definition of different-sex couples and same-sex couples who are living together in a stable relationship (article 7(2) of the new draft european convention on the adoption of children) is not without difficulties (compare section 144(4) to (6) of the adoption and children act 2002 and the recent decision of the strasbourg court in burden v united kingdom application no 13378/05, 29 april 2008, [2008] echr 357). ..... that he has financial obligations towards his daughter, which he has duly fulfilled, the court perceives no reason for treating him differently from a married father, now divorced and separated from the mother, as regards the tax deductibility of those payments. ..... in the powerful argument which he advanced on behalf of the child mr lavery qc accepted that article 8 did not confer a right to adopt on the ..... in 1993 it was stated on behalf of, among others, the welsh office and the lord chancellors department that the government did not intend to change the law which allowed adoption applications from married couples or single individuals: adoption: .....
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