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Matthew Handley – Solicitor in our Family department – discusses undertakings and when you no longer want to be bound by your promise.

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The UK Supreme Court has recently granted a divorced wife permission to challenge the undertaking that she gave to the Court to release her former husband from the mortgage liability on the former matrimonial home. Undertakings are legally binding promises given to the Court, obligating a party to do something or not to do something. Such promises are commonly found in Consent Orders where both parties have agreed their financial settlement arising from their divorce and consent to an Order is being made.

In Birch v Birch [2017] UKSC 53 the parties had concluded financial matters arising from their divorce in 2010 by way of a Consent Order. The Consent Order contained an undertaking from the wife to the secure the release of the husband from the mortgage on the former matrimonial home by 30 September 2012, so that he was no longer deemed liable for the mortgage. In default of the husband being released from the mortgage liability by 30 September 2012, the former matrimonial home was to be sold. However, in November 2011 the wife applied to the Court to vary the terms of the undertaking as she did not believe she would be able to release the husband in time. The wife wished to remain living in the family home with the parties’ two children until the youngest child of the family reached 18 (15 August 2019) or both of the parties’ children completed their full-time education.

The lower Courts determined that they did not have the jurisdiction to hear the wife’s application to vary her undertaking. The wife subsequently appealed and the matter eventually found itself before the Supreme Court. The Supreme Court confirmed that the Court has the power to grant or refuse an application to release a party from their undertaking (with a new undertaking given). Although the lower Courts were correct in identifying that the Court did not have power to vary the undertaking. Lord Hughes gave the dissenting judgment stating that:

“The description of the application as being to “vary” the wife’s undertaking is confused. The Court’s power is only to grant or refuse an application for release from the undertaking. Although the Court’s exercise of its power may result in something which looks like a variation of an undertaking, if it decides to accept a further undertaking, it is the product of a different process of reasoning .”

Wife’s application is to be remitted to the High Court for His Honour Judge Waller to consider if the Court’s jurisdiction (which the Court has) should be exercised in accordance with s31 of the Matrimonial Causes Act 1973 which deals with variation or discharge of orders for financial relief. In doing so, the Court will consider whether there has been any change in circumstances since the undertaking was given in 2010 to justify the wife’s application. Further factors to be considered will be the welfare of the children, the finality of proceedings, what prejudice the husband shall suffer if a replacement undertaking is given and how the husband is to be compensated if wife is to be released from her undertaking.

We will keep you updated as to the developments in the matter and the outcome of the case. If you have any queries or concerns about existing Orders relating to divorce or financial remedy proceedings, then please contact one of our Family solicitors; Caroline Bilous, Kirsty Morbey or Matthew Handley on 0161 832 3304.

Matthew Handley has recently undertaken a case of similar nature dealing with the varying of an undertaking provided within financial remedy proceedings.

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