Birch v Birch: revisiting the rules of consent orders in the family courts

Posted: 31/07/2017

The Supreme Court has now handed down its decision in the long-running case of Birch v Birch [2017] UKSC 53 in relation to whether the courts have jurisdiction to entertain a wife’s application to vary the terms of an undertaking enshrined in a consent order under s31 of the Matrimonial Causes Act 1973.

The parties had concluded financial proceedings in their divorce in 2010 and an order was made by consent. This order contained an undertaking from the wife to secure the release of the husband from the mortgage on the former matrimonial home by 30 September 2012, or for the property to be sold if she could not do so.

In November 2011 the wife made an application to vary this undertaking, explaining that she had been unable to secure the release of the husband from the mortgage, and would be unable to do so in the time period required by the undertaking. To have to sell the property and move would be damaging to the children who were attending schools near the property. She therefore wished to vary the undertaking so that the husband would only be released from the mortgage (or the property sold in default) when their youngest child reached the age of 18, or either of their two children completed full time education.

Her application was made under s31 MCA 1973, which deals with the variation or discharge of orders for financial relief and her case was that the undertaking was equivalent to an order for sale under s24A, which requires the court to take into account the children’s best interests. The lower courts concluded that they did not have the jurisdiction to hear the wife’s application under s31. Any jurisdiction to entertain the application and vary the order would be derived from the inherent jurisdiction of the court, rather than s31 of the Act, and they held that it was not appropriate to exercise it in this case.

However, the matter came before the Supreme Court which by a majority of four to one has allowed the wife's appeal and held that jurisdiction does exist to hear the application.

The matter will now be returned to HHJ Waller to decide whether the court's jurisdiction to vary the undertaking should be exercised in these circumstances. In doing so, he will need to give first consideration to the welfare of the parties’ children and contemplate whether the wife has been able to establish a significant change of circumstances since her undertaking was given and the question of what prejudice the husband has or would suffer by remaining tied to the mortgage.

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