Birch v Birch

A court has jurisdiction to release a litigant from an undertaking accepted by the court. It cannot vary the voluntary promise itself, although release may be conditional on a replacement undertaking.

Where the undertaking could have been framed as a variable order for sale, the jurisdiction to release it is equivalent to the statutory jurisdiction to vary that order. The court must consider all the circumstances, giving first consideration to the welfare of minor children. A significant change of circumstances and prejudice to the other party will usually be important, but neither defines the existence of jurisdiction.

Following their divorce, the parties entered a consent order intended to produce a clean break. The wife undertook to sell the former matrimonial home if she could not secure the husband's release from the mortgage by September 2012. She later sought release from that undertaking, offering in substance to postpone the sale until the younger child reached 18.

The District Judge and circuit judge held that no jurisdiction existed. The Court of Appeal, in [2015] EWCA Civ 833, recognised only a formal and technical jurisdiction and dismissed the wife's appeal. The central issue before the Supreme Court was whether the court had jurisdiction to entertain her application and, if so, on what basis it should be exercised.

1. Appeal allowed by a majority. Lord Wilson, with whom Lady Hale, Lord Kerr and Lord Carnwath agreed, held that the court had jurisdiction to hear the wife's application. The matter was remitted to HHJ Waller for urgent determination of whether she should be released from the undertaking.
2. An undertaking is a voluntary promise to the court. The court cannot vary its terms. It may release the promisor, with or without requiring a replacement undertaking as a condition. The lower courts had confused the existence of this jurisdiction with the principles governing its exercise.
3. The jurisdiction to release a litigant from an undertaking is of general application. A significant change of circumstances is not a condition of jurisdiction, although grounds for release will ordinarily be difficult to establish without one.
4. The undertaking to sell could have been framed as an order for sale under section 24A(1) of the Matrimonial Causes Act 1973, subject to a condition under section 24A(4). It was therefore illogical to treat the jurisdiction to release the wife differently from the jurisdiction under section 31(2)(f) to vary such an order.
5. The approach in Omielan v Omielan, which denied jurisdiction where variation entered the territory of an accompanying capital order, was rejected. Parliament had conferred an ostensibly unrestricted jurisdiction to vary an order for sale. The indirect effect of a proposed variation on a final property adjustment or lump-sum order was relevant to discretion, but did not delimit jurisdiction or justify an overriding territories test.
6. On remittal, section 31(7) required consideration of all the circumstances. First consideration was to be given to the welfare of the minor children, although that consideration could be outweighed. Important matters included any significant change of circumstances and the actual or prospective prejudice caused to the husband by his continuing mortgage liability. Compensation from the eventual proceeds could potentially be required as a condition of release.
7. Lord Hughes dissented. He agreed that jurisdiction existed but considered that it should not be exercised where the application was in substance an attempt to alter a final capital order rather than to work out its implementation. In his view the wife's application necessarily failed that test and the Court of Appeal's dismissal should have been upheld.

1. United Kingdom Supreme Court: By a majority, allowed the wife's appeal from [2015] EWCA Civ 833, held that jurisdiction existed and remitted the application to HHJ Waller.
2. Court of Appeal: In [2015] EWCA Civ 833, [2016] 2 FLR 467, held that only a formal and technical jurisdiction existed and dismissed the wife's appeal.
3. Circuit judge: HHJ Waller upheld the District Judge's conclusion and dismissed the first appeal.
4. Watford County Court: District Judge Chesterfield held that the court lacked jurisdiction and dismissed the application.