S v S

In ancillary relief proceedings, an alleged agreement may be dealt with by a notice to show cause where there is a strong case that it was concluded and a factor of magnetic importance may dominate the discretionary process. The agreement must nevertheless be considered with all the circumstances under section 25 of the Matrimonial Causes Act 1973. The court must not determine the agreement in isolation or stay the ancillary relief proceedings. Proportionate case management may restrict disclosure and direct an abbreviated hearing where the agreement has been substantially implemented and continued litigation would be disproportionate.

The parties, formerly married and possessing substantial assets, disputed whether negotiations concerning the division of their property had produced a concluded agreement. Most of the agreed division had been implemented, but a pension share and other issues remained unresolved. The applicant sought continuation of ancillary relief proceedings. The respondent sought a stay and a notice to show cause requiring the applicant to explain why an order should not be made in accordance with the alleged agreement. The central issue was the appropriate procedural route and extent of case management before the agreement’s status and effect were finally determined.

1. Agreement and statutory discretion. A concluded agreement is a matter of great weight. A formal agreement fairly reached with competent legal advice should not ordinarily be displaced without good and substantial grounds showing that injustice would result. The court must nevertheless perform its statutory duty under section 25 of the Matrimonial Causes Act 1973 and consider the agreement against all the circumstances.
2. Procedural route. It would be wrong to stay the ancillary relief proceedings or determine the alleged agreement as a preliminary issue in isolation from the section 25 factors. A notice to show cause may, however, be an appropriate and proportionate procedure where the agreement is strongly arguable and has such magnetic importance that it may dominate the discretionary process.
3. Case management. The overriding objective under FPR r 2.51D permits the court to save expense, limit disclosure and allocate resources proportionately. The procedural rules are not a straitjacket. It is unnecessary for every detail of an agreement to have been resolved before the court determines whether the parties should be held to it; matters of detail may be dealt with at an abbreviated hearing.
4. The evidence disclosed a very strong case that an agreement had been concluded and substantially implemented. The court therefore directed a three-day final hearing, limited further disclosure, required focused evidence concerning the remaining issues, and ordered that the notice to show cause be determined at that hearing. Costs were reserved.

First-instance case-management decision in ancillary relief proceedings. No prior appellate decision was stated.