Rose v Rose

Where parties agree financial relief terms at a financial dispute resolution appointment, the court may make an immediately effective consent order even though counsel must later reduce it to writing. Whether an order was made depends on the legal effect of the judge’s words in their context, rather than the absence of a perfected written order.

A party cannot withdraw merely after reconsidering the bargain. Before perfection, the court may reconsider an order in circumstances such as a plain mistake, material oversight, newly discovered facts or procedural unfairness. Even if exceptional circumstances or strong reasons constitute the applicable threshold, ordinary negotiating pressure and immaterial further information do not satisfy it.

Following divorce, the wife sought financial provision from a husband whose resources were assessed at approximately £13 million. At an adjourned financial dispute resolution appointment, Bennett J gave an early neutral evaluation indicating provision of about £3.6 million. The parties then agreed that the wife’s net assets would be brought to £3.5 million outright, with costs paid separately. After counsel announced the agreement, Bennett J stated that he was happy to record it.

The husband subsequently sought to withdraw before a written order was perfected. Coleridge J held that the hearing had produced only a contractual agreement approved in broad terms, rather than an order. The central issue on the wife’s appeal was whether Bennett J had made an order disposing of her application, subject only to its later perfection.

1. Appeal allowed unanimously. Thorpe LJ, with whom Buxton LJ and the Master of the Rolls agreed, held that Bennett J had made an order in the agreed terms. The order was effective when pronounced, although counsel still had to reduce it to writing and arrange its entry in the court record.

2. Under Rule 2.61E of the Family Proceedings Rules 1991, a financial dispute resolution appointment is held for discussion and negotiation. Its description as a hearing or meeting is merely semantic. The parties must attend and use their best endeavours to agree. At its conclusion, the court may adjourn the appointment, make a consent order, or give directions towards a final hearing.

3. The form of an FDR may vary with the judge, the available preparation and the nature of the dispute. Early neutral evaluation is a legitimate method. It must be used carefully because parties may treat the judge’s assessment as a decisive forecast. Proper preparation and reflection are essential, and a finely balanced dispute requiring oral evidence should proceed to a full and fair trial.

4. The context and Bennett J’s words established that an order had been made. The hearing was thoroughly prepared, the agreed figure closely matched the judge’s evaluation, and no adjournment or further directions were needed. In stating that he was happy to record the agreement, the judge was in substance ordering the agreed terms. A judge may pronounce an order and leave counsel to settle its formal wording.

5. A contractual settlement not made into an order remains subject to the court’s financial relief discretion. A valid consent order occupies a different position: a party cannot resile merely upon reflection and ordinarily requires a vitiating circumstance or a fundamental unforeseen change.

6. The court declined to formulate an exhaustive rule governing reconsideration between pronouncement and perfection. The considerations identified in Stewart v Engel [2000] 3 All ER 518, including plain judicial mistake, material oversight, newly discovered facts and procedural unfairness, were likely to apply. Even on a test of exceptional circumstances or strong reasons, the husband’s allegations of pressure, incomplete information and further reflection fell far short. Bennett J’s order was confirmed in the terms drafted by counsel.

1. Court of Appeal (Civil Division): The wife’s appeal was allowed unanimously. The court confirmed the order made by Bennett J in the terms subsequently drafted by counsel.

2. High Court, Family Division (Coleridge J): The wife’s application to finalise the terms as an order already made by Bennett J was refused. Coleridge J held that the FDR had produced only a broad contractual agreement requiring later judicial approval.

3. High Court, Family Division (Bennett J): At the FDR, the parties announced agreed financial terms. Bennett J stated that he was happy to record them, thereby making an order whose formal wording remained to be perfected.