Birch v Birch [2017] UKSC 53

Appeal concerning W’s application for “variation” of her undertaking provided in financial remedy proceedings.

 

Facts:

  • H and W compromised their claims in financial remedy proceedings by way of a consent order dated 28 July 2010. Inter alia, the order specified:
  • H would transfer his legal and beneficial interest in the former matrimonial home where W would remain living;
  • W would use her best endeavours to obtain H’s release from the mortgage;
  • W would discharge the mortgage instalments and, in any event, indemnify H in respect of any liability; and
  • If W was unable to procure H’s release from the mortgage by 20 September 2012 she would sell the property.
  • On 18 November 2011, W applied to “vary” the undertaking concerning the default sale.
  • H argued that the court had no jurisdiction to hear such an application. The District Judge at first instance, together with the Circuit Judge on appeal, and the Court of Appeal, all agreed with H.

 

Held:

  • W’s appeal was allowed and was remitted to the Circuit Judge for consideration.
  • One cannot apply to “vary” an undertaking but one can seek to be released from it; often this will require the applicant to offer to provide an alternative undertaking in its place.
  • Until this stage of the proceedings, the court had only considered the existence - as opposed to the exercise - of its jurisdiction.
  • However, whilst technically possible, without a significant change of circumstances since the date of the undertaking, grounds for release from it will be rare.