FN v AC (Financial Remedy - Agreement)

In financial remedy proceedings, a concluded agreement is a matter of substantial weight, but it does not create an entitlement to an immediate or abbreviated hearing. The court retains a broad case-management discretion to determine how the agreement should be considered against the statutory exercise under section 25 of the Matrimonial Causes Act 1973.

There is no inflexible procedure for applications requiring a party to show cause why an order should not be made. The appropriate course depends on the facts, including disputed vitiating factors, proportionality, likely costs and the risk of further hearings.

The husband appealed against a case-management order made by His Honour Judge Rogers on 17 June 2019 in financial remedy proceedings. The parties had signed a document recording proposed financial terms, including property arrangements, a lump-sum payment, a clean break and costs.

The wife later said that she was not bound by the document and raised undue pressure and related factual issues. The husband applied for her to show cause why an order should not be made in the agreed terms. The judge declined to list an abbreviated hearing and directed that the agreement should be considered within the wider proceedings. The issue was whether that case-management decision was wrong in principle or outside the proper ambit of discretion.

1. Appeal dismissed. The case-management order was within the judge’s discretion and was not vitiated by legal error or irrelevant considerations.

2. The existence of a concluded agreement carries great weight. The court must nevertheless consider its effect against the background of section 25 of the Matrimonial Causes Act 1973. Personal autonomy and the desirability of upholding freely entered agreements are important, but their application could not fairly be determined at the case-management hearing because the circumstances in which the document was signed were materially disputed.

3. The notice-to-show-cause procedure described in Xydhias is flexible and does not give an applicant an entitlement to an abbreviated hearing. The extent and sequence of the inquiry depend on the facts.

4. The court rejected any significant procedural distinction between agreements compromising financial remedy litigation and pre-nuptial, post-nuptial or separation agreements. The governing principles overlap, although their practical application may differ. There is no inflexible rule as to how such proceedings must be conducted.

5. Disputes concerning undue pressure, the parties’ circumstances and the fairness and effect of the proposed division required investigation. An abbreviated hearing risked duplication, further delay and disproportionate expense. It was therefore permissible to direct further case management, including a Financial Dispute Resolution hearing and preparation for a final hearing.

• High Court (Family Division) — appeal from the order of His Honour Judge Rogers dated 17 June 2019. Permission to appeal was granted on 6 September 2019. The appeal was dismissed on all grounds.