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Drafting consent orders: Hamilton v Hamilton

Sep 29, 2018, 21:04 PM
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Date : Apr 23, 2013, 09:30 AM
Article ID : 102287

Sarah Foreman, Solicitor, Vardags

Within family law there has developed an oft-used strategy when drafting consent orders upon divorce, in order to ensure that payments of lump sums are not capable of being varied further down the line. This tactic consists of labelling all lump sum payments individual lump sums, as opposed to a lump sum payable by instalments, and takes advantage of the wording of the Matrimonial Causes Act 1973 which, prima facie, suggests that only the latter are capable of later variation. It enables the wealthier spouse to continue with his or her life without the worry that, should their fortune increase, the ex they thought they had severed ties with could return to haunt them and attempt to vary their settlement upwards. Hamilton v Hamilton [2013] EWCA Civ 13, [2013] 2 FLR (forthcoming)    is the first case in which the Court of Appeal has considered this principle and has been described by Mrs Justice Baron, who delivered the main judgment, as the 'paradigm case', which will clarify the law in this regard.  As well as providing a succinct and enlightening clarification of the law, Mrs Justice Baron conveys some invaluable advice on drafting, of which all family lawyers should be aware.

The full version of this article appears in the May 2013 issue of Family Law.  

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