Equity and Trusts: Resulting Trusts (Basic notes)

The term ‘resulting’ comes from the Latin word ‘resalire’, meaning ‘to jump back’. 

The trust operates to ‘jump back’ interest in property to a donor who transferred it to another person who is now deemed a resulting trustee of property in his hands.

Resulting trusts respond to the absence of any intention on his part to pass the beneficial interest to the recipient. Additionally, where a trust has been used properly for its purpose but a surplus fund remains, it will be held on resulting trust.

Equitable maxim that ‘equity abhors a beneficial vacuum’ – where a person transferred property to another without identifying who was to enjoy the beneficial interest in such property, the beneficial interest would result back to the person transferring the property.

CASE LAW:

In Vandervell v IRC (no1) Lord Reid said the ‘beneficial interest must belong to or be held for somebody; so if it was not to belong to the donee or be held in trust by him for somebody, it must remain with the donor.’

Westdeutsche case: two instances in which a resulting trust arises:

1) A makes a voluntary payment to B, or pays for the purchase of property which is vested in either B alone or in their joint names. There is a presumption that A did not intend to make a gift to B – but this is only a presumption, and is easily rebutted where the A’s intention demonstrates that it was intended to be a gift.

2) A transfers property to B on express trust but fails to exhaust the entire beneficial interest.

Air Jamaica v Charlton [1999] – LJ Millett: a resulting trust ‘arises whether or not the transferor intended to retain a beneficial interest – he almost always does not – since it responds to any absence of intention on his part to pass a beneficial interest to the recipient.’

Re Sick [1973] – Megarry LJ: ‘a resulting trust is essentially a property concept; any property that a man does not effectually dispose of remains his own.

There are a plethora of circumstances in which a resulting trust might arise, although in all cases, the presumption in equity is that is that the transferor or the person providing the purchase money does not intend to confer absolute ownership on the transferee; rather the presumption is that he intends to retain the beneficial ownership.

Justifications for resulting trusts – 1) to reverse an unjust enrichment; 2) to give effect to the true intention of the settlor.

Automatic and presumed resulting trusts - Megarry J in Vandervell (no2) said that a resulting trust was one of two main types: 1) Automatic – arise automatically in circumstances where an express trust failed for some reason, e.g. failure to comply with a formality or being contrary to perpetuity rules; or 2) Presumed – arise on the basis of the presumed intentions of the person transferring property to another; most typically where a person transfers or purchases property in the name of another.

EXAMPLES WHERE A RESULTING TRUST ARISES

1. A settlor attempts to create a trust by appointing a trustee and transferring the £1000 to him. The settlor explains to the trustee that he will inform him later as to who the beneficiary of the trust is. The settlor fails to inform the trustee as to whom the £1000 was to benefit and a few weeks later dies.

2. A settlor creates a trust by transferring £20,000 on trust to his trustee for the medical costs of his old aunt so long as she is in hospital. The aunt recovers and is discharged from hospital. The trustee, however, has £12,000 of trust money which was not used for the aunt’s medical costs.

3. At the beginning of their studies, 50 law students form a club which organises seminars and talks on equity. The club also organised a number of trips. Membership to the club could only be taken on payment of a fee. The club also received some money from the parents of the students by way of voluntary donations and one legacy of £1000. The students are now coming to graduation and wish to end the club. There are 30 members remaining and the club has £1,200 in a bank.

4. You secure employment with a firm. The employer provides you with the opportunity to join a private pension payable on your retirement. The scheme requires that you pay a sum of money from your wage every month into the scheme. The employer also agrees to pay a certain sum each year into the scheme so as to make sure that it provides sufficient cover when the employees retire. Your employer has informed you that the business will be closed and the employees will receive their benefits from the scheme as explained in the scheme should the business cease trading. After payment of the agreed benefits, the pension scheme has a surplus of £200,000.

5. Michael transfers his house voluntarily in the name of his brother in fear that his new business may fail and his house may be at risk from the claims of creditors. The business, however, is a success and he wishes his brother to re-convey the house to him. The brother refuses to do so. Michael commences proceedings in court to recover the house on the ground that the only reason he transferred the house to his brother was to hide it from the creditors.

6. V and D are an unmarried couple, and have decided to purchase a house to live in. The legal title is taken in the name of V despite the fact that D contributed £30,000 to the initial deposit price. 

Succession: Key cases for s.9 Wills Act formalities

Kell v Chamer – a will may be written in any language or code - jewellery codes

Barnes – a will may be written on any material - egg shell

Murray – a will may be written on any material – cigarette packet

Hindmarsh v Charlton – signature: name or mark intended to represent name

In the Goods of Kieran – 2 letter signature was sufficient

Re Cook – “your loving mother” was sufficient

In the Goods of Flinn – thumb print signature was sufficient

Wood v Smith – may sign anywhere on the will

In the Goods of Mann – unsigned will contained in signed envelope was sufficient

In the Estate of Bean – unsigned will and unsigned envelope: name, address, date had been stated but was still insuffient

Smith v Smith – witness need not know the document is a will

Re Collings – witness must stay present until signature is complete

Brown v Skirrow – witnesses must be mentally and physically present

Casson v Dade – it was enough that the testator could have seen the witness sign, even if he did not actually see it

Couser v Couser – the judge questioned why no one asked if testator had looked to see the witness sign

Wilson v Beddard – 14 yr old witness was sufficient

Corbett v Newey – will doesn’t need to be dated

Banks v Goodfellow – T must understand 1) effect, 2) extent, 3) nature of will

Parker v Felgate – 1) capacity when drafting will, 2) will prepared as directed, 3) remembers instructions and believe they were followed, 4) no suspicious circumstances

In the Estate of Bohrmann – only need to exclude the part of the will affected by incapacity

Hall v Hall – Undue Influence – testator may be “lead but not driven”

Vaccianna v Herod – Forgery – civil standard of proof

Family Law: Surrogacy

Family: Surrogacy

-       Criminal offences: Surrogacy Arrangements Act 1985 s.2(1) – no person shall on a commercial basis take part in surrogacy negotiations, offer or agree to negotiate, or compile any information with a view to using it in negotiations.

To constitute an offence the arrangement must be made before the gestational mother becomes pregnant.

NB: the gestational and commissioning mother are not liable for the offence, only third parties making the arrangements.

It is also an offence to pay money that constitutes a reward or profit to the gestational mother under a surrogacy arrangement. Payment can cover expenses. Any payments can be authorised under s.30(7) HFEA 1990.

-       Enforcing a surrogacy arrangement: s.1A Surrogacy Arrangements Act 1985 says that no arrangement is enforceable.

Without this provision a surrogacy contract might be thought to be enforced in the same way as another contract.

In Briody v St Helens and Knowsley HA the court referred to the surrogacy arrangement as an ‘unenforceable and unlawful contract’.

-       What happens when the baby is born?

Option 1: Commissioning parents take no legal steps. Gestational mother (surrogate) would be the mother, and the biological father would be the father. If the legal status of the child’s parentage ever came to court, it’s likely that they’d order to maintain the status quo. In Re H a mother gave birth but did not want to care for the child. She handed the baby over to her friends, a lesbian couple –one had a history of mental illness whilst the other had a criminal conviction. The matter was brought before the court 9 months later, by which time the couple had bonded with the child. The court said that unless there was significant danger of harm, they would have to confirm present arrangements.

Option 2: Commissioning parents could apply for a parental order.

Option 3: Commissioning couple could apply for a residence order. Leave to make the application will be required unless the commissioning husband is the genetic father of the child. The courts’ paramount consideration will be the welfare of the child. Generally, unless the gestational mother opposes the application, it will be granted. Re P was an exceptional case where the surrogate mother had lied to the father and told him that she miscarried. He later found out the truth and applied for a residence order with his wife. Evidence of the surrogate mother’s psychological state meant that the child was better off with the commissioning parents, even though the child had bonded with the surrogate mother for 18 months.

Option 4: Commissioning parents may also apply for an adoption order where a parental order is not available. NB: the Adoption Act 1976 clearly forbids any ‘payment or reward’ in private adoption placements.

Option 5: Local authority may wish to investigate in order to decide whether to use any of its powers; e.g. care order.

-       Where gestational mother refuses to hand the child over – the commissioning parents could apply for a residence order. However, by the time the matter reaches the court it may well be that the child will have bonded with the gestational mother. This, in conjunction with the natural parent presumption, is likely to mean that the court will not grant the order and the child will stay with the gestational mother.

-       Confusing approach – the law’s response to surrogacy is ambiguous. Surrogacy itself is not illegal, but on the other hand surrogacy contracts are unenforceable.

ARGUMENTS FOR SURROGACY

-       A woman should be allowed to do with her body as she wishes

-       Some believe surrogacy is a more appropriate solution for infertile couples than many forms of assisted reproduction

-       Surrogacy is inevitable and therefore best regulated by law

-       Surrogacy encourages and enables a variety of family forms. It is especially good for gay couples

ARGUMENTS AGAINST SURROGACY

-       Surrogacy arrangements are contrary to the best interests of children. It is not desirable for a child to be born in circumstances that are so likely to result in a dispute between adults, which may well harm the child. A child may also be confused about his identity

-       Can be seen as demeaning to women as they are being used as ‘walking incubators’

-       Surrogacy does not challenge the attitude of society towards infertility and means resources are not directed towards discovering the causes of infertility

-       The Roman Catholic Church has argued that surrogacy is analogous to adultery, in that it brings a third party into the married

-       The child after birth might be rejected by both the gestational mother and the commissioning parents, particularly if the child is born disabled

-       Commercial surrogacy arrangements commodify children and treat them as chattels to be bought and sold.

Reform

In 1998 there was a review of surrogacy which led to proposals for a new code of practice aimed at controlling the payments of surrogate mothers and the regulation of surrogacy in the UK. These reforms perhaps happened following the publicity surrounding Karen Roche.

NB: some of the above content may have been taken from other sources

Family: Ancillary Relief

ABOLITION OF MAINTENANCE

-       The argument is that the existence of maintenance perpetuates the fact that women are dependent upon men.

-       The law tells wives that they will be entitled to financial support if their relationship ends, therefore women are willing to take lower-paid jobs and become dependent on their husbands.

-       If maintenance were abolished, it would encourage women to find adequately paid jobs.

-       O’Donovan has suggested that the abolition of maintenance can only fairly be accomplished when there is equality of division of labour during marriage, including financial equality; there is equal participation in wage-earning; there are wages geared to people as individuals and not as heads of families; there is treatment of people as individuals by the state in taxation and benefit provision.

ORDERS THAT THE COURT CAN MAKE

Income orders

Periodical payments order (PPO) under s.23 MCA 1973.

-       May be weekly, monthly or annually

-       Can be secured or unsecured (against property)

However, Thorpe LJ in AMS v Child Support Officer has said that secured PPOs ‘have been virtually relegated to the legal history books’.

-       Will cease on the death of either party – unless the order is secured, in which case it will continue after the payee’s death. It will also cease on the remarriage of the recipient as the new partner is deemed to be financially responsible for the recipient. Additionally, the court order may specify a specific date when payments are to end.

Property orders

There are three main types of property orders:

1) Lump sum orders

-       A lump sum order (LSO) requires a lump sum of money to be handed over by one spouse to the other.

-       May be made to a parent for the benefit of a child.

-       May be paid in instalments.

-       Often used when considering housing issues, assuming one party is going to stay in the matrimonial home.

2) Transfer of property orders

-       Orders one party to transfer a share in the matrimonial home to the other.

-       This order could also be used to transfer other property, such as a car or piece of furniture.

3) Power to order sale

-       Under s.24A MCA 1973 the court can order the sale of property, whether it’s owned outright by one of the parties or jointly by both parties.

-       The owner will usually be required to sell the item and then the proceeds are divided between the spouses by means of a lump sum order.

Clean break order

When considering which financial order to make, the court must consider whether to make a clean break order. If a clean break order is not made, the parties can potentially have further financial obligations placed upon them after divorce for the rest of their lives. I.e. if husband wins the lottery, the amount he is required to pay the wife may increase if there has not been a clean break. Similarly, if she won the lottery, the husband might ask that the payments stop.

-       A clean break order ends any continuing obligation between the spouses. However, it should be stressed that the clean break cannot end the possibility that a spouse may be liable for child support – it is only spousal support that can be cleanly broken.

-       A delayed clean break order is also possible, i.e. after 2 years of periodical payments

-       S.25A MCA 1973 provides the court with a duty to consider whether a clean break would be appropriate in all cases, but it will certainly not always be preferable.

Benefits of a clean break order: parties are free to pursue their own careers without worry that it will lead to a variation of the order; there may be emotional reasons i.e. feeling released from the marriage; if the recipient intends to remarry it will ensure she does not lose out on payment; it avoids future problems in the payment and collection of periodic payments. In Miller; McFarlane, Baroness Hale said ‘periodical payments are a continuing source of stress for both parties’.

-       The main advantage is that the court ties its hands and will not reopen the court order.

A clean break order is appropriate where

            1) Continuing support offers to benefit to the wife

            2) Short childless marriages are involved

            3) Very wealthy people are involved

            4) Both spouses have well-established careers

            5) There is antagonism between the parties

A clean break order is inappropriate where

            1) There are still young children

            2) There is too much uncertainty over the recipient’s financial future

            3) Where there is a lengthy marriage

            4) The courts want to achieve fairness

STATUTORY FACTORS TO BE TAKEN INTO ACCOUNT

-       Listed in s.25 MCA 1973

-       In Piglowska v Piglowska [1999] the HL accepted that different judges may reach different conclusions as to what the most appropriate order may be in a particular case.

-       In White v White Lord Nicholls suggested that fairness is the overriding purpose of the Act. This is the judges’ objective view of fairness.

-       However Miller; McFarlane said ‘fairness is an illusive concept’

1) The welfare of children – the court’s first consideration must be as to the welfare of any child who has not attained the age of 18. Although Suter v Suter and Jones clarified that although it is the first consideration, it is not the overriding consideration.

2) Financial resources – in reality the courts are mostly dealing with the debts rather than the assets of the parties. All assets will be considered, even those which the parties owned before the marriage.

NB: the financial resources of a third party (i.e. a new boyfriend) cannot be taken into account. However, the court can consider that a new spouse may be in a position to contribute to the household expenses, thereby reducing her needs.

NB: ‘other resources’ considered may include income from discretionary trusts, personal injury damages, or even inheritance received post-divorce.

B v B –held unfair to divide assets equally on divorce after a 12 year marriage where all the capital had been provided by the wife from an inheritance.

C v C – a husband was due to acquire a quarter share in a substantial trust fund on the death of a 74yr old widow. The court held that given that the woman was likely to die within the next 15 years and that the husband was definitely likely to be entitled, it was an asset that could be taken into account – had the widow been much younger, it’s unlikely that the court would have considered it.

NB: the court will consider both present income and any extra earnings that could be gained by working overtime. If a person is unemployed then he or she may be expected to find work. However, in A v A the court held it was not reasonable to expect a woman of 45 to seek full-time employment, although had she been much younger and childless the court may have reacted differently.

3) The needs, obligations and responsibilities of the parties – needs not be restricted to those that arise directly from the marriage. The concept ‘needs’ is inevitably subjective. The courts have interpreted ‘needs’ loosely. The needs of a rich couple are not the same as the needs of a poor couple. In F v F the court held that the wife needed 3 houses! Reasonable requirements are not limited to essentials.

4) The standard of living enjoyed by the family before marriage breakdown – this factor tends to be relevant to rich couples in particular. In S v S the court heard that because the couple had been heavily involved in horses during the marriage, the wife should be entitled to a sum which allowed her to continue her love of horses.

5) The age of each party to the marriage and the duration of the marriage – the shorter the marriage, the less likely the court will make a substantial award.

In Attar v Attar the couple had been married for 6 months, so it was suggested that the sum must simply reflect the amount required to put the parties back in the position they had been in before the marriage.

However, in C v C despite only a nine month marriage, a child with significant health issues had been born into it; therefore both a lump sum and periodical payments were ordered.

In Miller v Miller a wife was awarded £5million after a 3 year marriage, because the husband had made a significant amount of money during that time.

Alternatively in Krystman v Krystman the couple had been married for 26 years but only lived together for two weeks, so no order was made.

6) Any physical or mental disability of either of the parties to the marriage – the most notable case is C v C in which a husband was badly disabled and so was entitled to £5million, even though the wife was therefore left on social security benefits. The husband’s disabilities meant he required constant care and complex equipment, thus he was entitled to all the assets.

7) Contributions to the welfare of the family – must first consider the position of the spouse who is not earning, but has been working as the homemaker and child carer. White v White emphasised that the division of labour must be considered but it was not important who earned the money.

8) Conduct – at one time conduct was considered to be very important i.e. an adulterous wife could expect a low award. However it is now rare for conduct to be taken into account, unless it is such that the court would be inequitable to disregard it. In K v K the woman helped her depressed husband commit suicide as she wanted to acquire his estate.

Criminal: Is the law too kind to criminals?

I've decided to write a small post on whether the law is too kind to criminals, particularly as they pass through the criminal justice system. I am in the process of writing a 12,500 word dissertation on the subject, and therefore any comments are very much welcomed.

The idea for my dissertation came together after some thought on the ways in which justice is achieved in our 21st century legal system. Herbert Packer proposed two conflicting models which may attempt to deal with 'justice' - the Crime Control system and the Due Process system. Much as its name suggests, the Crime Control system focuses on ensuring criminals are successfully convicted, even at the expense of breaching human rights such as the right not to be tortured. In contradistinction, the Due Process system believes human rights should be upheld and respected at all times, even at the expense of criminals walking free. Looking at these two systems caused me to question whether either system alone could, or indeed should, work in isolation to the other - and furthermore, whether a Crime Control approach to justice could ever be justifiable.

The two systems then led me to think about Utilitarian ideologies and whether it's right that one person should suffer so that the many may be happy - or in criminal respects, that one person might be treated unjustly by the system in order that a conviction is secured and society might be safe.

It has been overwhelmingly clear that, as a general principle, the UK's justice system tends to favour the Due Process approach. As the technically more 'just' of the two, I suggest that this is the safer option, particularly given the outrage and criticism that would ensue were police permitted to take more heavy-handed action with suspects. Nevertheless, it must be questioned as to whether the Due Process model has gone so far as to not only protect criminals, but aid them in their quest for acquittal.

One area of particular interest to me has been the issue of 'double jeopardy' - an 800 year old law which states that no person can be tried twice for the same crime. Whilst in principle this principle may have a number of merits including preventing the floodgates of litigation from opening, it has led to some abhorrent results. Take, for example, the murder of Julie Hogg. The 22 year old woman who was brutally murdered for refusing to have sex with a man. He then hid her body behind her bath panel, only for her mother to discover it rotting months later. Whilst her murderer should have been convicted at trial - with evidence such as his semen on the blanket she was wrapped in, his finger prints on her keys, and many of her belongings hidden under his floorboards - the jury failed twice to come to a unanimous verdict, and he was subsequently acquitted. Knowing that double jeopardy would protect him, Julie's murderer later confessed to his ex-wife and a prison officer that he had strangled her for refusing to have sex with him.

If you're interested in the facts of this case, they are readily available online; however, the important factor is that double jeopardy has since been abolished in England and Wales (although unfortunately not in Scotland) as a result of this case. Julie Hogg's murderer was given a life sentence and many others like him are now facing re-trials. Part 10 of the Criminal Justice Act 2003 now permits a re-trial where 'new and compelling evidence' is available. What I attempt to explore, inter alia, is whether reform of this law has gone far enough - for instance, is the requirement that the evidence be 'new' too high a standard or should we make it easier for suspects to be re-tried? I will also look at whether the courts are too readily dismissing improperly obtained evidence or overturning convictions based on 'unfair trials', thereby allowing many known criminals to escape justice.

Please give me your thoughts, I look forward to hearing them!

Equity and Trusts: Fully Secret and Half Secret Trusts: the difference

Fully Secret

There are no names of trustees or beneficiaries on the will, neither are there terms or any information.

Requires INTENTION, COMMUNICATION and ACCEPTANCE.

Leading case is Ottaway v Norman.

In the event of a failure of the secret trust, the intended secret trustee takes the trust property absolutely.

The trust will fail if the intended trustee dies before the testator.

Half Secret

The name of the trustee will be mentioned in the will but the terms of the trust and the beneficiaries will not be mentioned.

Also requires INTENTION, COMMUNICATION and ACCEPTANCE, however the 'communication' must be before the execution of the will and evidence will be inadmissible if it's not consistent with the terms of the will.

Leading case is Blackwell v Blackwell.

In the event of a failure to create the half secret trust, a resulting trust will be set up for the testator's legatees and next of kin.

The trust will not fail if the intended trustee dies before the testator.

Family Law: Void and Voidable Marriages

What appears to be a ceremony of marriage can either be:

1. A valid marriage
2. A voidable marriage
3. A void marriage
4. A non-marriage, a ceremony of no legal significance

The difference between divorce and nullity: where a marriage is annulled the law recognises that there has been some flaw in the establishment of the marriage, rendering it ineffective. Where there is a divorce the creation of the marriage is considered proper but subsequent events demonstrate that the marriage should be bought to an end.

The difference between a void marriage and a non-marriage: a void marriage is one where, although there may have been some semblance of a marriage, there is in fact a fundamental flaw in the marriage which means that it is not recognised in the law as valid. Distinguish from a non-marriage in which the ceremony that the parties undertook was nothing like a marriage and so is of no legal consequence. With a void marriage the court has the power to make financial orders, redistributing property between the couple. If the ceremony is a non-marriage the court has no power to redistribute property and the couple will be treated as an unmarried couple.

Hudson v Leigh [2009] 3 FCR 401, Bodey J: list of factors indicating a void or non-marriage:
(a) Whether the ceremony or event set out or purported to be a lawful marriage;
(b) Whether it bore all or enough of the hallmarks of marriage;
(c) Whether the three key participants (man, woman, officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;
(d) The reasonable perceptions, understanding and beliefs of those in attendance.

The difference between a void and a voidable marriage: A void marriage is one that has never existed in the eyes of the law. A voidable marriage exists until it has been annulled by the courts; until then it is valid. NB: a child born to parties of a void marriage would be ‘illegitimate’. NB: any person may seek a declaration that the marriage is void, but only the parties to the marriage can apply to annul a voidable marriage.

Grounds on which a marriage is void: set out in the Matrimonial Causes Act 1973 s.11.
(a) that is it not a valid marriage under the provision of the Marriage Acts 1949 to 1986 (that is to say where- (i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of 16; or (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

Referring to s.11(c) in which the parties must be male and female, a person can apply for a Gender Recognition Certificate where they wish to legally change gender.

Gender Recognition Act 2004 s.9(1) – “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is female gender, the person’s sex becomes that of a woman).”

Gender Recognition Act 2004 s.2(1) – “(a) has or has had gender dsyphoria, (b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intends to continue to live in the acquired gender until death.”

Grounds on which a marriage is voidable: set out in the Matrimonial Causes Act 1973 s.12.
(a) That the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) That the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) That at the time of the marriage either party, though capable of giving a valid consent, was suffering from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;
(e) That at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) That at the time of the marriage the respondent was pregnant by some person other than the petitioner.


When considering lack of consent, this may be due to duress. Hirani v Hirani suggested that the test for duress should be based on the effect of the threat rather than the nature of the threat. In other words, the threats can be of any kind, but it must be shown that ‘the threats, pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual.’ P v R (Forced Marriage) followed Hirani and held that severe emotional pressure could be such as to mean that there was no genuine consent to marry.

Approbation: Matrimonial Causes Act 1973 s.13(1) – “The court shall not... grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court- (a) that the petitioner, with the knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b) that it would be unjust to the respondent to grant the decree.”

NB: a decree of nullity will normally not succeed unless bought within three years of the date of marriage (unless the petitioner suffered from some mental disorder).

Effects of a decree of nullity: Matrimonial Causes Act 1973 s.16 – “A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.”

Reform of nullity: in 2008 only 200 annulments were granted out of the 331 petitions. The tiny numbers involved have raised the question as to whether we need such complex law on the area. There have been some debates over whether the concept of voidable marriage should be abolished. The Law Commission argued that voidable marriage should be retained as to some couples, it’s very important that annulment end their marriage and not divorce; e.g. for religious reasons.

Forced marriages: defined as where one person forces another to enter into a marriage without their ‘full and free consent’. Article 12 ECHR protects the right to marry; this includes the right not to be forced into a marriage against your will. A marriage of this type can be annulled on the grounds of no consent but forced marriages do not have their own legislation governing validity. In Re B; RB v FB and MA [2008] 2 FLR 1624 Hogg J described forced marriage as ‘abusive’.

It should be emphasised that there are no legal objections to arranged marriage, where the parents of the parties have a choice in who their child marries.

The Forced Marriage (Civil Protection) Act 2007 enables the court to make ‘forced marriage protection orders’ (FMPOs)

(Notes based on the Herring, Family Law text book)

Succession: Formalities for making a valid will

The formalities provide a safe-guard against forgery, undue influence and also hasty or ill-considered dispositions. Formalities can be justified by the need to provide reliable evidence of a person’s intentions.
Prior to the enactment of s.9 Wills Act 1837, there were different formalities for wills relating to different types of property; thus a will could be invalid for one type of property and valid for another. The idea behind s.9 was to create one system which was easily and generally understood. S.9 has been amended by the Wills Act Amendment Act 1852 and also by the Administration of Justice Act 1982 (s.17).

Thus s.9 now applies to all testators who die on or after Jan 1 1983. There are 5 requirements

1. The will must be in writing – although there are no restrictions as to the materials on which or by which it is written. It may be handwritten or typed. No particular form of words must be used. May be in pencil or ink or a combination (although ink is preferable).

2. The will must be signed – the testator does not need to sign his name, he may just mark the will in some way. Thus initials, stamp or a mark are sufficient if intended to be the signature. This is the case even if the testator’s hand was guided by another person in making the mark. The will may also be signed by another person in the testator’s presence and by his direction – that person may be one of the witnesses. If the will is written on more than one page, all the pages must be attached in some way so as to constitute a single testamentary document; the pages should be securely attached to reduce risk of fraud or accidental loss. The signature may be anywhere on the will document, following the authority of Wood v Smith [1993] Ch. 90 and the Administration of Justice Act 1982; originally it had to have been “at the foot or end” and thus nothing written after it would have been considered.

3. The testator must intend by his signature to give effect to the will – the original s.9 did not expressly state this, it was only implied. Now, the Act requires it to APPEAR as though the testator intended his signature to give effect to the will, but no proof is required.

4. The testator’s signature must be made or acknowledged in the presence of witnesses – two witnesses must be present at the same time; this requirement has not changed since 1837. The witnesses do not need to know that the document is a will, but they must be aware that the testator is writing – being in the same room is not sufficient on its own. The requirement is also not satisfied if the witness leaves the room before the testator completes his intended signature. If the witnesses were not simultaneously present during the testator’s signing of the will, they must subsequently acknowledge it in the presence of one another. For this acknowledgement: the will must have already been signed, the witnesses must see the signature or have the opportunity of seeing it (thus if the signature is covered up this won’t count), and the testator must acknowledge the signature by words or conduct (express acknowledgement is desired but gestures will count). NB: a blind person cannot be a witness or be mentally incapable – when the requirement says the witnesses must be present, this means body and mind.

5. The witnesses must sign or acknowledge – the witnesses need not sign in the presence of each other but must sign in the presence of the testator. The testator must be physically and mentally present and must have at least had the opportunity to witness the sign if he had chosen to look – without this requirement being met before both witnesses have signed the will becomes invalid.  As stated above, a marking is sufficient as a signature and the signature may be anywhere on the will. Originally s.9 required ‘attestation and subscription’ i.e. attest (witness the signature) and subscribe (sign it at the foot/end). Now the witness must either attest and sign, or acknowledge his signature.

OTHER:

Attestation – if he acknowledges his previous signature, he is not required to attest and sign; but if he signs and does not acknowledge, he must ‘attest and sign’.

Presumption of due execution – where a will appears to have been duly executed but there is no proof of due execution, it may be inferred. Harris v Knight (1890) 15 P.D. 170, 179 used the maxim “omnia praesumuntur rite esse acta” meaning of a reasonable probability, and of the proprietary in point of law of acting on such probability.

Attestation clause – s.9 says no form of attestation is necessary although is highly desirable as it facilitates grant of probate. In the absence of an attestation clause, the district judge/registrar must require evidence of due execution of the will.

EU Law: Free movement of workers

Directive 2004/38 and Article 39 EC (now Article 45 TFEU)

No definition of a worker; allows the court to give it a broad meaning and means that member states can’t interpret it restrictively. The courts have said that, with regards workers, any definitions should be given their ordinary meanings and that individuals should be doing ‘genuine’ and ‘effective’ work.

Common law definitions of a worker have been set out in Lawrie-Blum, which said that a worker is someone who provides services for another, for a set length of time, in exchange for money; and Levin which said that part time workers may still be regarded as workers as long as the work isn’t minimal or nominal.

Moving in search of work is an issue not covered by Article 39 (now Article 45) but has been dealt with by the common law. The authority of Royer established that there is a right to reside in search of work, presumably drawing upon general citizenship principles of the EU, drawing on Articles 20 and 21 TFEU. Levin was slightly harsher in ruling that citizens should only be granted a maximum period of 3 months in which to work, on the condition that they can provide for themselves, without being reliant on the host member state’s finances. Finally Antonissen was much more generous in ruling that individuals should be granted the right to reside for a sufficiently long length of time, such that they have a good chance at creating a link with the employment market. The current law in this area is that member states must allow a minimum for 3 months residence for EU citizens to look for work, however the UK is more generous and allows 6 months residence.

Public service jobs are not included under Article 45(4) TFEU as MS maintain the right to reserve certain jobs for their own nationals. But Sotgiu said only the court could determine which jobs are ‘public service’ jobs.

Right of residence will be granted where the individual successfully secures employment. A residency permit lasts for 5 years and is renewable. However, failure to find work or a voluntary unemployment will result in a loss or lack of permit, as demonstrated in Williams where the UK national was denied residency in the Netherlands for unemployment.

Right to reside after employment – concerns the retired and incapacitated workers. Those who have retired from work are allowed the right to continue residing in the host member state on two conditions. Namely, that the individual has reached the retirement/national pension age of that member state, and that the individual has resided in the host member state for the last 3 years, the final year of which he was in employment. Incapacitated workers are subcategorised into those who are incapacitated as a result of work undertaken in the host member state, and those who are incapacitated due to a reason unrelated to the member state. If the condition is the result of work in the member state then the individual is automatically entitled to residency for life and a state pension; whereas if the condition is from some other means, the individual must prove that he has resided in the host member state for the last 2 years.

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Dependants of workers have been given rights as an extension of the principle of non-discrimination on grounds of nationality. They are defined in Article 2 Directive 2004/38 to include the following family members: spouses, partners in a registered partnership, direct descendants (children) who are under 21 or who are dependant, and direct relatives in the ascending line including those of the spouse or partner.

Family members does not include co-habitee although in Netherlands v Reed the court made an exception as the national law of the Netherlands did not distinguish between spouses and co-habitees, and therefore they could not deny the right to a non-national where it would have been afforded to a national.

Non-EU national dependants - The case of Metock gave more rights to workers and their families by providing that ANYONE who fell within the scope of Article 2 of the Directive was entitled to reside with the worker, whether they were an EU or NON-EU NATIONAL. Furthermore, it changed the law which had previously required dependants to have prior residence in another member state, and said that the host member state could NOT LOOK AT PREVIOUS RESIDENCE.

The journal by C Costello on Metock said that “...the ECJ’s rights-based approach supports a vision of residence rights in which origins and belonging in the EU are decoupled.”

The journal by S Currie on Metock said that “...the ruling enshrines a more equitable approach to third-country national family members...”

Rights of dependants include the right to EDUCATION, HOUSING, WELFARE and TRAINING. These are particularly advanced by Regulation 1612/68.

Loss of rights will occur either when the worker loses his rights, the dependant is separated from the worker by divorce, or for example the child marrying off.

Death of the worker won’t always result in the dependant losing his rights. He will retain the right of residence if: 1) He had been residing with the worker in the host member state for the past 2 years; 2) The worker was killed by an occupational disease or industrial accident; or 3) He had previously had the nationality of that member state but lost it on becoming a dependant of the worker.

NB: the rights earned in one member state won’t necessarily transfer over if the dependant moves country. For example, pension schemes may be lost on movement abroad.

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Limitations on workers and dependants are on grounds of public security, public health and public policy. They are listed in Article 27 of Directive 2004/38. This means that a citizen may be expelled from the host member state if he threatens any of the above. The authority of Rutili has established that a member state will only be able to export a citizen where “his conduct or presence constitutes a sufficiently serious threat to public policy”. This now codified in Article 27.

Van Duyn demonstrated that a country may only deport or refuse entry to individuals, not groups of people. In this case a member of the Church of Scientology was refused entry based on their beliefs and intention to join other members in the host member state.

Finally, criminal convictions won’t always lead to deportation. In Bonsignore the defendant had accidentally shot and killed his brother with an illegally possessed gun. The courts said his presence did not amount to a threat - unlikely to reoffend. However, in Bouchereau the court said it was legitimate to deport the defendant as he had a long history of drug convictions and had demonstrated a willingness to reoffend.

Article 28 of the Directive provides citizens with additional protection by setting out criteria that a member state must consider before authorising deportation.

The Legal Services Act

Check out this article on the effect of The Legal Services Act...

http://www.lawyer-monthly.com/media/Huthwaite.pdf