Birch v Birch

A court may have a formal jurisdiction to vary an undertaking contained in a final financial consent order, even where the undertaking concerns matters outside the statutory powers under the Matrimonial Causes Act 1973. The jurisdiction is exceptional and must respect finality. It may be exercised where a significant new event invalidates the order’s basis or fundamental assumption, but not merely because a different arrangement would now appear fairer. Section 24A is procedural. Its variation power concerns implementation, enforcement and procedure, not the substance of a primary property-adjustment order under section 24. Where undertakings were integral to a property transfer and a proposed variation would replace the agreed capital arrangement with a different one, the court should not exercise the jurisdiction.

Following divorce, a consent financial order required the wife to seek the husband’s release from mortgage liability and, failing that by 30 September 2012, to sell the former matrimonial home. She applied under section 31 of the Matrimonial Causes Act 1973 to defer sale until the youngest child reached 18 or completed full-time education. District Judge Chesterfield held that the court had no jurisdiction. His Honour Judge Waller CBE granted permission to appeal but dismissed the appeal. The Court of Appeal considered whether the undertakings were equivalent to an order under section 24A, whether a general jurisdiction existed to vary an undertaking, and whether the proposed variation could properly be made.

The appeal was dismissed unanimously. McCombe LJ gave the leading judgment. Kitchin LJ agreed. Gross LJ also agreed, although he expressed some doubt whether the sale undertaking might be equivalent to an order under section 24A.

1. Finality. Final post-divorce capital adjustments, including consent orders, are not open to substantive reconsideration absent a vitiating factor such as fraud, misrepresentation or material non-disclosure. A new event invalidating the basis or fundamental assumption of the order may provide a ground for review. This principle was treated as central to the statutory scheme and the authorities including Omielan v Omielan [1996] 2 FLR 306, Dinch v Dinch (1987) 8 FLR Part 2 162, De Lasala v De Lasala [1980] AC 546 and Barder v Caluori [1988] AC 20.
2. Statutory distinction. Section 24A of the Matrimonial Causes Act 1973 is procedural. Section 31(2)(f) permits variation of an ancillary order under section 24A, but not a primary property-adjustment order under section 24. Section 24(1)(a) and the statutory scheme therefore do not permit the proposed substantive reconsideration.
3. Nature of the undertakings. The undertakings were not equivalent to section 24A orders. The court could not itself have ordered the wife to obtain the husband’s release from mortgage covenants and indemnify him. Nevertheless, undertakings of this kind may properly be accepted in a consent financial order and are enforceable as effectively as direct orders, following Livesey v Jenkins [1985] AC 424.
4. Jurisdiction to vary. A formal jurisdiction to vary an undertaking in a final order technically existed. It was not a general or unfettered power. The court had to consider whether the proposed variation preserved the fundamental purpose of the order or instead undermined its substratum. The jurisdiction was therefore extremely limited, consistent with L v L [2008] FLR 26.
5. The undertakings were integral to the property transfer. Deferring sale until the child reached adulthood would substitute an entirely different outcome and undermine the basis on which the consent order had been made. Even if the sale undertaking were treated as a section 24A order, the variation would revisit the substance of the primary section 24 adjustment. The court could see no basis for exercising the jurisdiction. The appeal was dismissed.

• Court of Appeal (Civil Division): on second appeal, dismissed the wife’s appeal concerning jurisdiction: [2015] EWCA Civ 833.
• Family Court at Watford: His Honour Judge Waller CBE granted permission to appeal from the preliminary jurisdiction ruling but dismissed the appeal on 12 May 2014.
• District Judge: District Judge Chesterfield held on 15 January 2014 that the court had no jurisdiction to entertain the proposed variation and dismissed the application.