In Birch v Birch [2017] UKSC 53 the Supreme Court was very recently asked to consider whether the courts can revisit a final consent order agreed between a wife and husband. In Birch, the wife had given an undertaking to the court, to release the husband from his obligations under the joint mortgage and to sell the house if she had not managed to do so by a particular date. As the date approached, the wife applied for permission to delay the sale by another seven years.

The Supreme Court by a majority of 4:1 granted the wife’s appeal and remitted for urgent hearing her application to be released from the undertaking in the consent order. The Supreme Court stated that, although an undertaking cannot be varied as such, the court can release the person from his or her promise and would perhaps only do so by accepting an alternative promise in its place. Where the undertaking could easily have been substituted by an order of the court for a sale of the house, the principles applicable to any changes to the final decision ought be the same. It was decided that the court does have the power to vary an order for sale and the wife should at least have been given an opportunity to argue her case.

The wife successfully argued that her application should come within section 31 of the Matrimonial Causes Act 1973 which predominantly deals with variations in relation to monthly maintenance and the court should therefore take into consideration the children’s best interests. The children’s best interests were likely to have some significant weight in determining whether the previous promise the wife had given should be varied.

While this ruling is significant in clarifying a party’s ability to vary an order, it may raise concern for individuals who have similar orders and were hoping to be released from a mortgage at a set time in the future. This might now not be as certain as it was prior to this decision by the Supreme Court and for some husbands or wives this uncertainty will cause some concern.

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