Undertakings Undermined: The Supreme Court, Children and “Clean Breaks” 

Published on 28 July, 2017 | James Brown

One common feature of divorce is how often spouses whose marriages have ended talk about being determined to make the most of the opportunity for a fresh start in life.

Of course, that can be easier said than done on many different levels.

More than the administration is the emotion, much of which may well have been invested in a lengthy relationship.

The now-ex-husband and wife may share lots of friends and even work in the same office.

However, arguably the most difficult elements of all to unpick are finances and family.

Wherever possible, courts try to ensure what is known as a ‘clean break’ settlement. Often a lump sum payment, it capitalises maintenance and avoids the prospect of ongoing dependence.

As my colleague Andrew Newbury described on the pages of both The Times and this ‘blog in May, the frequency with which maintenance (or ‘periodical payments’, to give it the correct legal term) is awarded has dropped by 13 per cent in the last five years (https://hallbrown.co.uk/girl-power-death-meal-ticket-life/).

Even so, changing circumstances can prevent intentions of an immediate ‘clean break’ from being realised. Normally, one would expect that someone giving an undertaking to honour such a division would be held to it.

A new decision by the Supreme Court has given some valuable indications as to why former partners should be allowed some leeway when that’s not possible.

It has just ruled in the case of a couple, Mr and Mrs Birch, who signed a consent order in July 2010, three months before their divorce was finalised.

That order set out the terms of a settlement in which Mrs Birch would remain in the family home with the couple’s children but would come up with the money to buy the husband out of the mortgage on it by September 2012, so that he could fund a new property of his own. If that didn’t happened, it was agreed, then the house would be sold.

Mrs Birch, though, subsequently asked a court for more time because she wasn’t able to release her husband from the mortgage. She wanted to extend the deadline either until her youngest child reached the age of 18 or her two children had completed full-time education.

The matter was serious all-‘round. Firstly, Mr Birch’s fresh start was not only delayed. The size of a mortgage available to him for a new home would be drastically reduced because of his existing commitments.

Secondly, the couple’s children needed a roof over their heads, something which would be jeopardised if their home had to be sold.

Thirdly and perhaps most worryingly for Mrs Birch, the undertaking which she’d given in a consent order – later approved by a court – is a solemn obligation. A failure to honour it or have it successfully varied amounts to contempt of court and can lead to a fine or even a prison sentence.

It threw up the issue of whether courts had the power to vary the undertaking given by Mrs Birch in the manner which she requested and it was felt that only the Supreme Court had the legal authority to decide.

What it has done is provide important guidance on a frequent conflict in divorce proceedings: the needs of the spouses balanced against the needs of any children involved (https://www.supremecourt.uk/cases/docs/uksc-2015-0230-judgment.pdf).

Five Supreme Court judges, led by Lady Hale (who, only last week, was named as the new President of the Supreme Court), concluded that the requirement of the children was paramount.

However, there was a caveat, a conciliatory device to soften the blow for Mr Birch in not being able to move on as swiftly as was envisaged when he divorced. In the event of someone being financially inconvenienced or prevented from making an immediate fresh start, should be compensated.

If anything, the case is a reminder of how the circumstances which follow the collapse of a marriage are as individual as the people within it. Being able to provide clarity can help simplify what can be a delicate situation.