Family Law

The last month or so has seen a variety of decisions which have amounted to the family courts, in different ways, saying to couples they must live with their agreements; that there must be an end to matrimonial financial litigation. All are based on judicial common sense of the highest order; but where does substantive law (which surely cries out for reform: but therein lies a different question) fit in with all this?

Most striking, most sensible, but (perhaps) least lawful is T v T [2013] EWHC B3 (sic) (Fam), Parker J. In that case the parties - both represented by lawyers - reached agreement as to their financial arrangements on separation in 1991. No order was made on their subsequent divorce. H had prospered. W had not. She sought a fresh order. Parker J held:

[58] [My above review of the case law cannot] undermine the duty of the court to make its own independent assessment, and to consider the s.25 criteria and fairness, and a just result. The exercise that the court conducts is not one of enforcing the agreement but of determining whether an order should be made in the same terms of the agreement. But I consider that the court is under no duty to examine in detail the parties' current financial circumstances in deciding whether the agreement is now fair.

Matrimonial Causes Act 1973 s 25 says that the ‘duty' of the court in deciding whether to make an order is to have regard to ‘all the circumstances of the case' (my emphasis); and in in particular to a variety of present and future factors, applicable at the time when the application bites. In T v T W's recently made application was before the court, but it was ‘rejected' by the judge (ie not adjudicated upon) because she had not ‘shown cause why the agreement should not be made an order of the court'.

In Wicks v Wicks [1998] 1 FLR 470 Ward LJ (in the Court of Appeal) made it clear that the family courts do not have any inherent jurisdiction where statute so clearly binds their steps. Expressly s 25 says that there is the ‘duty' which Parker J expressly denied. An interim capital adjustment (a Barry order) was a good idea; but statute did not provide for it; and therefore the husband's appeal in Wicks succeeded. W must await a final hearing.

In Vince v Wyatt [2013] EWCA Civ 495 the Court of Appeal upheld the provision of FPR 2010 r 4.4(1), which enables the court to strike out a claim eg for ‘abuse of the court's process'. The couple had lived apart for a similar period to Mr and Mrs T. At time of separation they were living in subsistence conditions. Meanwhile H had prospered massively, but W's financial condition remained much as 20 years before. The court said she was far too late to pursue a claim. It was dismissed.

The judgment of Jackson LJ was expressed by reference to procedural legal principle: abuse of process (and see CPR 1998 r 3.4(2)); but neither he nor Thorpe LJ (who gave the first judgement) explained the statutory source of their power. Still less did they examine it in the light of their ‘duty' under MCA 1973 s 25 (a statutory provision which does not receive consideration in Vince). Again the common sense position was clear (common sense would have adjusted property in Wicks), and all but uncontrovertible.

It is well-known that a rule cannot change the law or extend the jurisdiction of the court - see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586 (per Buxton LJ):

[7] ... rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628.)

There are no statutory provisions for strike out, and no ‘existing jurisdiction'. MCA 1973 s 25 remains the only statutory source of conditions on the court's powers to make substantive orders. Parliament has imposed no statutory time-bar in financial remedy proceedings. Section 25 is in the present tense and applies in all cases, surely; and a delegated law provision (eg r 4.4) cannot override that?

And in S v S [2013] EWHC 991 (Fam) Sir Hugh Bennett revisited an order which he had approved in July 2012 (having heard the parties evidence), but not decided the case himself. He approved the terms of the agreement; but the order was not sealed. He held that he was therefore not functus. He held that H's evidence had been ‘seriously misleading' (para [29]); but that even so had he told the truth the order he would have made could be said by him to have been ‘substantially different' (Lord Brandon in Livesey (formerly Jenkins) v Jenkins [1985] AC 424) from that which he approved (paras [36], [42]).

For all of us, statute law (in this case MCA 1973 s 25) must be the first reference of parties (and their lawyers, if any) and of judges in analysis of what a court can do (ie in the case of judges, by applying the law to any facts in a case before them)? As Sir Hugh told Mr S, ‘You must put all cards on the table face up'. It is for the judge then to decide what to ignore having considered all s 25 ‘matters' - as the law now stands.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Agreements are considered in Chapter 14.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.