Matrimonial (Case Study)

A Hard Battle Won

Over the years Max Engel has visited the higher courts (as well as regular visits to the local County Court) and done sterling work with a large variety of financial cases: more than our fair share of injunctions and assisted many a warring couple to resolve differences over children. We echo the advice of the ancient Chinese General Sun-tzu and have avoided battles if there was any realistic prospect of continuing diplomacy however vigorous that process turns out!

Nonetheless 1994 was the year where we took our client's case to the Court of Appeal and did achieve a victory ranking in the words of one member of the firm on a par with Rumpole’s Penge bungalow murder!

We negotiated a clean break settlement for our client and had the settlement approved and initialled by the Court Registrar back in December 1990. At that time our client's wife had not obtained a divorce and hence the order could not be finalised or become effective. However, what may have been thought of as a good deal for her became less so in her eyes with the dramatic crash in property prices at that time. She sought to have the proposed order annulled so that she could revisit for a better deal. She was supported initially by the local court but we appealed to the High Court in London on behalf of our client. Mr. Justice Singer however, did not agree with us and turned down our appeal referring the case back for a retrial at local level. Our client was understandably dismayed as he felt he had made a perfectly proper bargain. Even more so when he was up against the might of the Legal Aid Board who were financing his wife. We briefed Counsel in the form of Mr Peter Duckworth (a family law specialist of some renown) who performed magnificently all the way through.

Eventually we came before three Lords of Appeal, Neal, Hoffman and Waite who found in favour of our client and established the important principle that once a judge has given advance approval to a draft order then that approval is effective even prior to the pronouncement of the divorce. In other words once a judge had indicated his satisfaction at local level there is no need to revisit his approval after the divorce is pronounced. It is necessary to understand in this context that it is still the fact that:-

a. A financial consent order entered into by the parties must be approved by the court to make sure that no-one has walked blindly into a poor situation.

b. The order does not become finally effective until there actually is a divorce to give the court the necessary jurisdiction.

However, this case did clearly demonstrate that once a Judge has approved the order, it is not possible to set it aside just because it awaits the pronouncement of the divorce itself.

Our client was awarded his costs from Public Funds.