It is presumed that the form of consent order in question is a property adjustment order under section 24(1)(b) of the Matrimonial Causes Act 1973 (MCA 1973), combined with an order for sale under MCA 1973, s 24A. Property adjustment orders made under MCA 1973, s 24 may not be varied. However, an order for sale made under MCA 1973, s 24A may be varied under MCA 1973, s 31 only as to the terms of the order for sale and not as to the underlying

This Q&A assumes that the order was made pursuant to an application for financial relief associated with divorce. The Administration of Justice Act 1920 (AJA 1920) makes provision for the registration and thereafter enforcement within the UK of judgments obtained in a superior court of any part of the Commonwealth; the Foreign Judgements (Reciprocal Enforcement) Act 1933 extends the registration system to foreign countries generally. Procedurally, such registration and enforcement is dealt with by CPR 74.1. By CPR 74.2(1)(c), ’judgment’ means any judgment given by a foreign court or tribunal, whatever it may be called, including an order. However, AJA 1920, s 12(1) makes clear that the expression ’judgment’ for the purposes of AJA 1920 means ‘any

Second appeals Where an appeal from a first instance decision in a private children case has been determined, a party would require permission to bring a second appeal (ie an appeal against the decision made on the first appeal). The threshold for obtaining permission on a second appeal is higher. One has to look to the CPR to determine the permission test and the correct procedural route. The Family Procedure Rules (FPR 2010), SI 2010/2955 generally apply to appeals from decisions of the Family Court, however, while FPR 2010, SI 2010/2955, 30.3(1B) and (2) set out when permission to appeal is, or is not, required under FPR 2010, SI 2010/2955 to appeal against a decision or order

Much will depend on the precise terms agreed between the parties, ie whether a core element of the child maintenance was agreed at a fixed amount with no top-up payable at the time of the initial order because the payer’s income did not, at that time, exceed the threshold. Also of significance will be whether, when the core element of child maintenance was fixed, the 50/50 shared care arrangement was already in place. The formula adopted in the order appears to follow the lines advocated by Mostyn J in CB v KB, in particular at para [49], when he said: ‘I suggest that in every case where the gross annual income

In general, the purpose of a capitalised maintenance order is to effect a clean break so as to terminate the financial obligations of each party towards the other in life and/or death by virtue of the provisions of section 25A of the Matrimonial Causes Act 1973 (MCA 1973). See Practice Notes: Capitalised maintenance—Duxbury calculations and Financial clean break orders in family proceedings. MCA 1973, s 25A(1) provides (emphasis added): ‘Where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24[, 24A [24B or 24E]] above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the

Pursuant to section 31 of the Matrimonial Causes Act 1973 (MCA 1973), the court has the power to vary its own orders made within financial remedy proceedings, but that power is limited. The types of orders that may be varied are listed in MCA 1973, s 31(2), and include orders for periodical payments and secured periodical payment orders. There is no jurisdiction

When a property is owned by a husband and wife as joint tenants, they both own the entirety of the property and the death of one results in the surviving joint tenant retaining their ownership of the entirety of the property. It is not possible for either the husband or the wife to leave their ‘share’ as a joint tenant in the property to a third party. When a husband and wife separate and commence divorce proceedings, one of the first steps taken is often to sever any joint tenancy so that the parties hold

The order will remain enforceable subject to any supervening Barder events (per Barder v Calouri) which might make it capable of being set aside. Delay of itself is unlikely to satisfy the Barder requirements. Two critical issues may be: • the period of time which has elapsed (and therefore the delay) since the order was made • in the event of a sale under the terms of the original order, whether the party who was originally intended to be the recipient of the lump sum is entitled to receive a fixed share or a percentage share of the net proceeds of sale Much will depend on the circumstances of the case and the exact terms of the order, but factors potentially of note include: • a

The court has a full jurisdiction to approve or reject a financial remedy consent order representing the parties’ agreement (per section 33A of the Matrimonial Causes Act 1973 (MCA 1973) and the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 9.26). However, the court is neither ‘a rubber stamp’ nor ‘a bloodhound’ or ‘forensic ferret’ (per Pounds v Pounds) and L v L). It is impossible to oust the jurisdiction of the court. The court conducts an independent assessment to enable it to discharge its statutory functions reflecting the criteria listed in the MCA 1973, s 25. The court will, however, be heavily influenced by what the parties

The court's role when considering a draft financial consent order is not simply to act as a rubber stamp. The court has a duty to scrutinise the agreement before it, but may make an order in the terms agreed on the basis of the information set out in the parties' statements of information, unless it has reason to believe that there are other circumstances into which it should enquire. The court will always retain its discretionary role under the Matrimonial Causes Act 1973. Clients should be advised

The Family Court has jurisdiction under section 23 of the Matrimonial Causes Act 1973 (MCA 1973) to make an order for periodical payments in favour of a party to a marriage or in favour of a child of the family for their own maintenance or for the maintenance of a child. However this power is subject to the provisions of the Child Support Act 1991 (CSA 1991) of which CSA 1991, s 8 curtails the powers of the court to make child maintenance orders. Any child maintenance order made in financial remedy proceedings can thus be superseded after 12 months by either party seeking a maintenance

Where the courts in England and Wales are faced with financial remedy proceedings in which the bulk of the assets are real property based abroad, enforcement can become a significant issue. That is particularly so where the court makes an award for a lump sum, backed with a default order for sale in respect of property based abroad. As a consequence of Brexit and following implementation period (IP) completion day (11 pm 31 December 2020), an added issue is whether the case is covered by the transitional provisions applicable to proceedings issued prior to IP completion day (see below), which will dictate