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 said: ‘ordinary contractual principles do not determine the issues in this appeal. This is because of the fundamental distinction that an agreement for the compromise of an ancillary relief application does not give rise to a contract enforceable in law. The parties seeking to uphold a concluded agreement for the compromise of such an application cannot sue for specific performance. The only way of rendering the bargain enforceable, whether to ensure that the applicant obtains the agreed transfers and payments or whether to protect the respondent from future claims, is to convert the concluded agreement into an order of the court.’
Thorpe LJ said that ‘an agreement for the compromise of an ancillary relief application does not give rise to a contract enforceable in law’ and that ‘the payer’s liability cannot be ultimately fixed by compromise as can be done in the settlement of claims in other divisions’.
Thorpe, Mummery and Stuart-Smith LJJ
Times 13-Jan-1999, Gazette 10-Feb-1999, Gazette 27-Jan-1999, [1998] EWCA Civ 1966, [1999] 2 All ER 386, [1999] 1 FLR 683, [1999] 1 FCR 289, [1999] Fam Law 301
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2(3)
England and Wales
Citing:
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Cited – Foley v Classique Coaches Ltd CA 1934
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from . .
Cited – Peacock v Peacock FD 1991
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 . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Harte v Harte 2-Dec-1976
Ordinary contractual considerations apply to the interpretation of a settlement of an ancillary relief application. . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
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 – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Arthur J S Hall and Co (A Firm) v Simons etc CA 14-Dec-1998
The court considered the limits on liability for professional negligence for lawyers in conduct associated with litigation, but outside the courtroom.
Held: Though the court must balance the need for protection against negligence by lawyers . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Robinson v Robinson (Practice Note) CA 2-Jan-1982
The husband was a serving soldier who had had various postings abroad. The wife returned home, where she discovered that she was pregnant. He followed her home, but she left him, and applied for maintenance. The justices found that she had deserted . .
Cited by:
Cited – Cox v Cox and Skan Dansk Design Limited ChD 27-Apr-2006
Mrs Cox sought to declarations as to the effect of arrangements made on her divorce in an attempt to avoid contentious proceedings. The couple held equal shares in the family business, but the company registers were missing or had never existed. The . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
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 . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Cited – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Warwick (Formerly Yarwood) v Trustee In Bankruptcy of Clive Graham Yarwood ChD 13-Sep-2010
The trustee sought to have set aside as an unlawful preference, the payment of 75% of the proceeds of sale of the former matrimonial home to the bankrupt’s wife, saying that the payment had been made after the presentation of the petition. The . .
Cited – S v S FD 14-Jan-2014
The court was asked to approve a settlement reached under the IFLA arbitration scheme.
Held: The order was approved, but the court took the opportunity to give guidance. . .
Cited – Bokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Sharland v Sharland CA 10-Feb-2014
Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. . .
Lists of cited by and citing cases may be incomplete.
Family
Leading Case
Updated: 02 November 2021; Ref: scu.145445
