When parties reach agreement in respect of financial arrangements arising from divorce they enter into a Consent order to provide clarity as to the agreement reached and to provide the parties with certainty that the arrangements agreed form a full and final settlement of all financial claims arising out of their marriage.
However, in a recent case that has come before the Supreme Court Birch and Birch (2017) UKSC53 a decision has been made that certain circumstances could allow parties to revisit the agreements made. This could lead to a lack of certainty for divorcing couples in the future.
In Birch and Birch a Consent order was entered into between the parties in 2010.The wife retained the former family home and continued to live there with the children of the family then aged 10 and 8. The agreement provided for the husband to transfer the ownership of the property into his former wife’s sole name on the basis that he was released from his obligations under the joint mortgage by no later than the 30th September 2012. If by that date the wife could not obtain the husband’s release from the joint mortgage the house was to be placed on the market for sale.
It became clear that the wife could not obtain husband’s release from the mortgage and in November 2011 the wife made an application to vary the Order to allow her more time to obtain his release. She sought to extend the period of time until the 15th August 2019 which was her son’s 18th birthday.
The District Judge who heard the application refused the extension and when the wife appealed to a Circuit Judge the outcome was the same and the application again rejected.
The matter has now come before the Supreme Court some six years after the wife’s original application to vary the Order and five years after the date by which the property should have been sold.
The Supreme Court have not given a determination of the application itself but has determined that there is limited scope for hearing the application and has referred the matter back to the lower courts again for a decision.
It is important that financial agreements between divorcing couples provide people with certainty about their financial futures. Should this application ultimately succeed it will cause understandable concern and anxiety for parties with similar orders. Family lawyers and divorcing couples will be watching the outcome of this case very closely.
If you would like any help or advice regarding family and relationship breakdowns then please contact Michelle Guest on 01926 356045 or email michelle.guest@alsterskelley.com
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