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A few days ago the Supreme Court clarified a question concerning the court’s powers on divorce.

Divorce courts only have the powers given to them by parliament so are not free to do anything outside that “toolbox” of powers. Often divorcing couples wish to agree matters outside the power of the court. For some time this situation been dealt with by “ undertakings” i.e. promises by one party to the other. So final court orders often consist of a series of promises followed by court orders. So the undertakings/promises are not the court exercising its powers. When a divorce court exercises its powers that is usually a one off exercise so orders cannot subsequently be varied in the case of orders relating to capital. Maintenance orders are different as the court has power to vary.

In Birch part of the final agreed order provided for the husband to transfer his interest in the home to the wife and she promised to obtain his release from his promises under the mortgage by an agreed date, failing which the home would be sold to enable that release to take place. Accordingly,the husband is likely to have relied on that promise when agreeing to the overall terms of the agreement/order.

In the event the wife was unable to secure the husband’s release as had been promised. Instead of putting the house on the market for sale she applied to the court to vary her undertaking so as to extend the deadline until several years later.

The case fought all the way to the Supreme Court as the husband argued that the court had no power to hear the wife’s application. However, the court has now issued its decision in favour of the wife therefore decided that it has the power to vary undertakings albeit that power is not unfettered.

Advisers must now be very careful when advising their clients to agree to undertakings as previously it was thought that the undertaking could not be varied but the court has now said that the courts have the power to vary undertakings.

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