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Be certain before signing


The majority of clients who divorce or separate do so because something in the relationship has turned out to be not as hoped or expected.


What happens if after all of the angst and emotional upheaval of divorce and financial proceedings the result turns out to be not quite as expected? In other articles in this series we have considered the situation if there has been dishonesty by one party or a lack of disclosure. What happens if a party simply desires a different outcome?


In the case of Birch (2015) the Court of Appeal has given guidance. The wife had given a promise to do her best to release the husband from the mortgage so that the house could be transferred into her sole name but the house was to be sold if she could not secure his release.


She was unable to release him so the transfer never took place and the wife asked the court to vary her promise so that the husband was only released when the youngest child reached majority or left full time education.


The Court of Appeal confirmed the view of the lower courts that the court has no jurisdiction to reconsider a final order even by agreement unless the order had been affected by such factors as fraud, non-disclosure, duress or misrepresentation. The important principle of achieving finality in financial claims applied.


So it is even more important to have a full understanding of the meaning and implications of the terms agreed. There is no scope for "buyer's remorse". This is an even more dangerous situation as we move into an era in which there is no legal aid for people to receive full advice on the implications of orders but it highlights the need for that advice in the first place. It is one thing to need a divorce because things have turned out differently from how it seemed when the marriage certificate was signed. It is quite another if things turn out differently after signing on the dotted line of the final order designed to draw a line under everything.


When average houses cost a quarter of a million pounds and pensions are often of the same value it just does not make sense not to have legal advice coasting a few hundred pounds when sorting out half a million. The old adage about not spoiling the ship for a hap'orth of tar has never been more apt.



Ian Stirzaker


Ian is the Senior Partner and Head of Family Law at SME Solicitors. Please contact him or Joanna Gardner for specialist help and advice in all aspects of family law at   or


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Added: 28 Sep 2016 14:21

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