Dinch 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.
Held: The House accepted, that: ‘subject to the provisions of that section, once the court has either exercised or declined to exercise its power to make such an order in relation to particular property, no further application for an order in respect of that property at least, whether original or by way of variation of an existing order, can be obtained.’
Lord Oliver of Aylmerton said: ‘The issue between the parties is simply and solely one of the proper construction of the consent order.’ and ‘What is in dispute is whether the consent order in this case was one by which the court either exercised or declined to exercise its jurisdiction under section 24 of the Act to make a property adjustment order.’
Lord Oliver rejected a proposition that ‘as a matter of general principle and in every case, if an application is made for ancillary relief and, whether consensually or otherwise, no order is made, it is necessarily implicit that the application is dismissed.’ The reason for this rejection was: ‘It must, in each case, be a question of construction of the particular order under consideration, and whilst I do not dissent from the proposition that a proper caution should be exercised before reaching a conclusion that will effectively preclude a wife from making a further claim for relief, I do not, for my part, derive much help from consideration of where the burden lies. One has, as it seems to me, simply to look at the order and any admissible material available for its construction, and determine what the court intended, or, in the case of the consent order, what the parties intended, to effect by the order. If the conclusion is that what was intended was a final and conclusive once-for-all financial settlement, either overall or in relation to a particular property, then it must follow that that precludes any further claim to relief in relation to that property.’
Lord Oliver of Aylmerton
[1987] 1 WLR 252, [1987] 1 All ER 818
Matrimonial Causes Act 1973
England and Wales
Cited by:
CitedBirch 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 . .

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Updated: 05 March 2021; Ref: scu.643869