On the 26th July 2017 the Supreme Court ruled in favour of a wife who sought to vary the terms of a financial consent order made at the time of her divorce.
In July 2010 Mr and Mrs Birch entered into a financial consent order which included provision for a clean break. A clean break within family law prevents either party from making any future financial claims of any kind after a divorce has been settled.
The wife continued to live in the jointly owned former matrimonial home with their two children who were both in full time education. The husband agreed to transfer the house to his wife and in return he would be released from his covenants under the joint mortgage. The order allowed Mrs Birch until September 2012 to release Mr Birch. The court has power to allow the delay of an order for sale if there are any children under 18.
It is essential for a husband and wife to protect themselves and their future assets if they do not wish for their former spouse to make a claim at a later stage. A clean break is intended to achieve this result.
However, a year after the order had been made Mrs Birch applied to have the period extended beyond September 2012 because she could not get him released and the children had not completed full time education.
Mr Birch opposed the application because he did not believe his ex-wife was entitled to vary the original order. Mrs Birch believes she can and took her case all the way up to the Supreme Court.
Mrs Birch won her appeal and her case will now be heard by His Honour Judge Waller to assess “whether she can establish a significant change of circumstances since her undertaking was given; and whether Mr Birch has suffered prejudice due to not being released from his mortgage covenants for a longer period than was anticipated.”
This case shows that a financial order plays a fundamental role within divorce proceedings if each party is to be financially independent once the divorce has been finalised.
The case also shows that complications can arise over financial orders which can have an impact on the family involved for years to come. The whole purpose of a financial order is to prevent ongoing frustration and emotional impact for both parties.
This case is unique as financial consent orders following divorce are supposed to represent a final order and are very rarely altered by the courts afterwards.
In this case the Court of Appeal has ruled that the original order can be revisited. It will be interesting to see what the final result will be.