TW v PL

Where parties reach a concluded agreement in financial remedy proceedings, the court must decide whether the agreement is binding or whether a vitiating factor justifies setting it aside. There is no intermediate course permitting the court to impose different terms. The party seeking to escape the agreement must establish good and substantial grounds showing that enforcement would cause injustice. An agreement may be approved and made an order where no such circumstances are established.

The applicant mother sought financial provision for the parties’ child under Schedule 1 of the Children Act 1989. Shortly before a contested hearing, the parties agreed that the respondent father would pay £1,600 per month. The mother signed a draft order, but the father did not sign it and the court had not approved it.

After the mother gave a magazine interview referring to the father and his approach towards the child, the father sought to withdraw his consent, alleging breach of undertakings intended to form part of the agreement. The central issue was whether the parties had reached a concluded agreement and, if so, whether the interview constituted a vitiating circumstance justifying its avoidance.

1. The court held that the parties had reached a concluded agreement concerning financial provision for the child. The fact that the father had not signed the agreement and that it had not yet been approved by the court meant that no formal breach of the proposed undertakings had occurred, but it did not prevent the agreement from being binding between the parties.

2. There was no halfway house. The court had to determine either that the parties were bound by the concluded agreement or that a vitiating factor entitled a party to set it aside. It could not uphold the agreement while imposing different terms from those incorporated in it.

3. Applying the principle in Edgar v Edgar [1980] 1 WLR 1410, the father had to show good and substantial grounds demonstrating that enforcement would cause injustice. The agreement had been reached after both parties had taken a sensible and commercial approach, with the benefit of solicitors, experts and advice. The mother’s interview might have been misguided, but it did not establish vitiating circumstances or injustice sufficient to release the father.

4. The agreement was approved and made a court order. The undertakings incorporated in the order became binding and enforceable. Any future breach could expose the mother to punishment by financial penalty or, in an extreme case, imprisonment.