Birch v Birch: consent order revisited

The courts can revisit a final consent order agreed between a wife and husband, the Supreme Court has held.

Birch v Birch [2017] UKSC 53 concerned a consent order in 2010, under which the wife agreed to discharge the mortgage on the family home in return for the husband giving up his interest in it.

Crucially, if she did not manage to do this by a certain date in 2012 then the house would be sold. She did not manage, and applied to vary the terms of the order to release the husband from liability only when the youngest child became 18 or finished full-time education.

Overruling the Court of Appeal, the Supreme Court held the court has jurisdiction to revisit the order, and returned the case to the District Judge.

Hannah Field, senior associate at Russell-Cooke said the judgment was significant for a couple when considering the ability to vary a financial order following a divorce: "Normally once a couple resolve their finances and have obtained an order confirming the terms, there is little ability in terms of the capital division to amend such an order later down the line. In this case the wife wanted to change an agreement she made with her husband upon a divorce to remove him from the mortgage, and if she could not do so, for the house to be sold. She asked the court not to sell the house. The wife successfully argued that her application should come within section 31 of the Matrimonial Causes Act 1973 (this predominantly deals with variations in relation to monthly maintenance) and the court should therefore take into consideration the children’s best interests. The children’s best interests were likely to have some significant weight in determining whether the previous promise  the wife had given should be varied. 

"While this ruling is significant in clarifying a couples ability to vary an order, it may raise concern for individuals who have similar orders and were hoping to be released from a mortgage at a set time in the future. This might now not be as certain as it was prior to this decision by the Supreme Court and for some husbands or wives this uncertainty will cause some concern. One of the key components in family law is to provide certainty at the conclusion of a matter and this latest judgement may call that in to question.

"In light of the issues and the fact that the outcome, whatever that may have been, would have impacted on the children, an alternative form of dispute resolution may have been more appropriate in order to resolve the matter without delay, less animosity and no doubt at significantly less cost."