Pounds v Pounds

A financial consent order made in matrimonial proceedings cannot take effect before decree nisi. However, a registrar may approve the proposed order before decree nisi and direct that it remain inchoate until after the decree. The later drawing up, sealing and dating of the order is administrative, provided the approval and directions were sufficient. An erroneous earlier date is a clerical error capable of correction under the slip rule. No fresh judicial appraisal is required after decree nisi unless circumstances have changed.

The parties negotiated a clean-break agreement under which the husband would transfer his interest in the matrimonial home to the wife and both parties’ financial claims would be dismissed. Before decree nisi, the registrar endorsed the draft order with the words “terms of order approved” and directed that it remain on the file. Decree nisi was subsequently pronounced, but the order was perfected and sealed later while incorrectly bearing the date of the registrar’s earlier approval.

The wife successfully argued before Singer J that the order was a nullity and that the underlying agreement was unjust. The husband appealed, challenging both conclusions. The central issue was whether the order was validly made after decree nisi and whether its erroneous date could be corrected.

1. Appeal allowed. The consent order was validly made and its date was to be corrected under the slip rule from 11 December 1990 to 25 January 1991. Costs below were not disturbed.
2. The powers to make financial orders under sections 23 and 24 of the Matrimonial Causes Act 1973 are exercisable only on granting decree nisi or thereafter. Section 33A does not remove that temporal limitation.
3. That limitation does not prevent a registrar from approving a draft consent order before decree nisi, provided the approval is intended to remain inchoate until a date on or after decree nisi. The approval may then be incorporated into an order without a further merits hearing.
4. The relevant judicial act is the registrar’s approval and directions concerning the later incorporation of that approval. The subsequent preparation, sealing and dating of the document are administrative acts and do not require a fresh independent judicial judgment.
5. Under RSC Order 42 rule 3, an order may be directed to bear a later date. The erroneous attribution of the approval date was therefore a clerical error. It could be corrected under RSC Order 20 rule 11, as reproduced for the County Court by CCR Order 16 rule 5.
6. The court did not decide whether the underlying agreement would otherwise have been binding or fair. Lord Justice Hoffmann described that area as legally unsatisfactory, but treated the issue as unnecessary once a valid consent order was established.

Appeal allowed with costs. Costs due to the wife were not to be enforced without leave of the court.

• Court of Appeal: Allowed the husband’s appeal and directed that the consent order be amended under the slip rule by substituting 25 January 1991 for 11 December 1990.
• Family Division, before Singer J: Set aside the consent order as a nullity and made fresh financial provision, including periodic maintenance for the wife.