Birch v Birch: SC 26 Jul 2017

The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her performance until the youngest child attained 18. H objected that the court had no jurisdiction to hear such an application. W’s appeal to the CA was only technically successful – the court did have a limited ability, but there was no reason for its exercise in this case.
Held: (Lord Hughes dissenting) The appeal succeeded. The court did have jurisdiction to hear W’s application, and the case was remitted to HHJ Waller to decide whether the jurisdiction should be exercised.
Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
[2017] UKSC 53, [2017] 3 FCR 111, [2017] 2 FLR 1031, [2017] 1 WLR 2959, [2017] WLR(D) 557, [2018] 1 All ER 108, UKSC 2015/0230
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 170522 am Video, SC 150522 pm Video
Matrimonial Causes Act 1973 24A, Matrimonial Homes and Property Act 1981, Matrimonial and Family Proceedings Act 1984
England and Wales
CitedCutler v Wandsworth Stadium Ltd CA 1945
Morton LJ criticised an application to vary an undertaking given to it: ‘ . . the court does not vary an undertaking given by a litigant. If the litigant has given an undertaking and desires to be released from that undertaking, the application . .
Appeal fromBirch v Birch CA 31-Jul-2015
Application to vary undertaking given in a financial relief application. They had obtained a consent order compromising their claims. W undertook to obtain the release of H from his mortgage covenants. She had been unsuccessful in doing so and . .
CitedRussell v Russell CA 1956
The husband appealed against a judge’s refusal to release him from an undertaking that, unless he was out of work, he would not apply for a downwards variation of an order for maintenance in favour of the wife.
Held: The husband had ‘wholly . .
CitedKensington Housing Trust v Oliver CA 1997
After the tenant caused flooding of flats underneath her flat. As a result the landlord had obtained an order for possession of it but it had undertaken to the court to offer the tenant specified alternative accommodation at basement or ground floor . .
Valuable guidanceMid Suffolk District Council v Clarke CA 15-Feb-2006
The council had taken proceedings against a farmer whose production of swill, for feeding to pigs, was emitting a smell which local residents found scarcely tolerable. Rather than suffer the making of an injunction against him, the farmer had . .
CitedThompson v Thompson CA 1986
An order had been made in 1981 for the home not to be sold until the youngest child had attained the age of 17 ‘or further order’. The wife, who was living in the home with the children, against a judge’s determination that he had no jurisdiction to . .
CitedTaylor v Taylor CA 1987
An order had been made for the wife to have exclusive occupation of the home and on its sale to receive 40% of the net proceeds. A recorder had acceded to a subsequent application by the husband under section 24A for the immediate sale of the home. . .
CitedL v L FD 2-May-2006
The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act. . .
CitedDinch v Dinch HL 1987
Consent orders had been made for maintenance and financial provision. The House was now asked whether the former wife could seek a property adjustment order of a type that had been sought in her petition but had not been made by the consent orders. . .
CitedWestbury v Sampson CA 23-Mar-2001
The claimant was advised to accept a consent order that his wife should pay him a capital sum in the divorce, but by instalments. The wife later successfully applied to have the sum reduced. He sought to claim against his former solicitors for not . .
CitedOmielan v Omielan CA 30-Jul-1996
H and W entered into a consent order which related in particular to their home, vested in their joint names, in which the wife wished to continue to reside with the children of the family. Part of the order was a property adjustment order: it was, . .
CitedMinton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
CitedMyerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .
CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
CitedBarder v Calouri HL 1987
In divorce proceedings, the husband transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20th February 1985 and on 25th March an appalling tragedy . .
CitedWard v Ward and Greene 1980
It was argued that in order for the court fully to flex its powers at final hearing under section 23 and section 24 MCA 1973, it was necessary to issue a separate application under the MWPA 1882 (or the Law of Property Act 1925). . .

These lists may be incomplete.
Updated: 05 March 2021; Ref: scu.591173