The court considered its ability to vary a consent order, made in 1982 on the divorce, which provided for the sale of the matrimonial home ten years later in 1992 and for the equal division of the proceeds of sale. Periodical payments were to be made to the wife and the two children who remained in the home. In 1984 the parties agreed for the husband to transfer his interest to her, but they were not ad idem because he believed that she was releasing him from all future payments not only to her but also to the children, whereas the wife understood that she would lose only her own periodical payments. When that dispute arose, the husband applied to vary the periodical payments and the wife sought specific performance of the promise to transfer the house. Her claim was transferred to the Family Division.
Held: Thorpe J said: ‘the first conclusion at which I have arrived is that the Chancery proceedings were misconceived. All the issues between the parties related to the 1982 consent order, its implementation, and its possible variations. The fundamental, but not exclusive, consideration for any transfer of the husband’s interest in the home was the wife’s abandonment of her right to claim periodical payments. The implementation of that fundamental consideration would have involved the dismissal of her claim to periodical payments and her rights to claim under the Inheritance (Provision for Family and Dependants) Act 1975.
It is beyond question that such orders are not made simply upon evidence of the applicant’s consent. The court has an overriding duty to survey the sufficiency of the proposed consideration and the overall fairness of the orders proposed. Accordingly, the wife should have brought the disputed compromise before the Edmonton County Court.
In my judgment the issue of proceedings in Chancery by the wife’s advisors in reaction served only to complicate an already complicated issue, to delay an adjudication from which the parties might hope to look with satisfaction for its fairness and finality, and to increase substantially the costs for a family that is not in a position to afford any waste. Nor could Chancery proceedings ever have achieved any practical advantage for the wife. How could the court order specific performance of one side of the bargain, when the plaintiff was not able to perform her side of the bargain without the concurrence of another court having completed a wide-ranging review?
In my judgment, this is, and always has been, an issue that could only be litigated within the suit. Effective jurisdiction remained exclusively in the Edmonton County Court until the suit was transferred to the Family Division. Accordingly I do not intend to grant any relief to the wife within the Chancery proceedings.’
Thorpe J
[1991] FCR 121
England and Wales
Cited by:
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 12 December 2021; Ref: scu.235235
