The Supreme Court has granted a woman permission to challenge the terms of a consent order made prior to her divorce.
Such orders detail the financial settlement between former spouses and are approved by the court. Birch v Birch concerned a 2010 order which contained two important rules. The first was that the matrimonial home should become Ms Birch’s property within 28 days of the divorce being finalised. The other rule, or ‘undertaking’, was that she needed to release her former husband from paying the mortgage before a set time. If she failed to do so, the Court ordered that the house be sold.
In the consent order, the Ms Birch was given until September 2012 to make the necessary arrangements. However a little over a year after the order was made, she applied to have the timeframe extended until her youngest child turned 18 or either of her two children, born in 2000 and 2001 respectively, had completed their full time education.
Her application was denied so she took her case to the Court of Appeal. She hoped the Court would allow her to launch a challenge against the original decision. Unfortunately for her, this bid was unsuccessful as Lord Justice McCombe declared that her proposed change “would undermine the substratum of the final order made with the consent of the parties and the approval of the court”.
Orders like the one at the centre of this case are not altered very often as they are supposed to represent a final order in a financial dispute. The judgment from the Court of Appeal stated that “finality in this sphere of the law is a most important consideration”.
Undeterred, the wife decided to take the matter to the highest judicial authority in the country where, by a margin of four to one, she was granted permission to appeal.
In the Court’s judgment, Lord Wilson wrote that Ms Birch’s case will be heard by His Honour Judge Waller. The Judge will have to consider “all relevant circumstances” such as “whether the wife can establish a significant change of circumstances since her undertaking was given” and if Mr Birch had suffered, and to what extent, “by remaining liable under his mortgage covenants”.