L v L

A final ancillary-relief consent order cannot be reopened merely because one party later regrets a generous bargain, received poor legal advice, felt pressure, or regards the terms as unfair. Review is confined to recognised grounds, including fraud, operative mistake, material non-disclosure and a qualifying supervening event. Separate, limited jurisdiction exists for undertakings and executory terms where later circumstances make enforcement inequitable. The court may accept enforceable undertakings more generous than an order it could itself make. A judge approving a consent order must exercise discretion, but need not conduct a forensic investigation. An application under section 31 to vary, discharge or suspend periodical payments is distinct and does not require a change of circumstances as a condition of jurisdiction.

Following divorce, the parties agreed financial terms and District Judge MacGregor approved a consent ancillary-relief order on 20 October 2004. The husband later sought to set it aside or appeal, alleging bad legal advice, pressure, mistake, non-disclosure, excessive generosity, legal error and uncertainty. He also sought variation or discharge of periodical-payment undertakings under the Matrimonial Causes Act 1973. The wife applied to strike out the challenges. The central issues were whether the proposed challenges were arguable and whether the section 31 application could proceed.

Disposition. The husband’s applications to set aside or appeal the consent order were struck out. His application under section 31 of the Matrimonial Causes Act 1973 was allowed to proceed.

1. Finality and recognised grounds. A final consent order took effect from the order, not merely from the underlying agreement: de Lasala v de Lasala [1980] AC 546. The recognised grounds for review included fraud, mistake, material non-disclosure and a qualifying supervening event. The husband could not rely on those grounds because there had been no operative mistake, significant non-disclosure or unexpected event invalidating the basis of the order.
2. Bad advice, pressure and generosity. Bad legal advice could not, by itself, justify setting aside a final consent order. The approach in Harris v Manahan [1997] 1 FLR 205 and Tibbs v Dick [1998] 2 FLR 1118 applied. Bad advice could be relevant to an unembodied agreement or a timely de novo review, but those circumstances did not arise. Pressure falling short of undue influence, and unfairness or over-generosity alone, were insufficient.
3. Undertakings and executory terms. The court could accept and enforce undertakings imposing obligations which it could not itself order. Section 28(1)(a) did not prohibit a voluntary undertaking providing maintenance beyond remarriage. Nor was there public policy against substantial generosity by a wealthy party who remained adequately provided for. The constrained jurisdiction concerning undertakings and executory orders required justice together with a significant change of circumstances or equivalent inequity. No such change existed here.
4. Judicial approval. The District Judge was not a mere rubber stamp, but neither was she obliged to conduct exhaustive investigations. She was entitled to rely on represented parties and the disclosed summary financial information. Her decision to approve the order was not a ground for setting it aside.
5. Strike out and section 31. Under RSC Order 18 rule 19 and the inherent jurisdiction, applications with no properly arguable basis and serving no useful purpose could be struck out. The notice of appeal, CPR Part 8 claim, Family Division application and the non-section 31 part of Form A were therefore struck out. Section 31 provided an independent jurisdiction to vary, discharge or suspend periodical payments, including undertakings, without a change of circumstances being a jurisdictional prerequisite. The separate Dart v Dart [1996] 2 FLR 286 route was unnecessary.

District Judge MacGregor made the consent order on 20 October 2004, sealed on 22 October 2004. The husband issued four applications and a section 31 application in June 2005. The wife then sought strike-out. This court struck out the set-aside and appeal routes while allowing the section 31 application to continue.