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Supreme Court hears appeal on application of section 31, Matrimonial Causes Act 1973

Wife appeals from Court of Appeal judgment in Birch v Birch [2015] EWCA Civ 833

On 22 May 2017 the Supreme Court heard the appeal by the former wife against the Court of Appeal's judgment in Birch v Birch [2015] EWCA Civ 833.

The Supreme Court – comprising Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath and Lord Hughes – were considering whether, when varying a consent order, the court should apply s.31 of the Matrimonial Causes Act 1973, or it is constrained by Court of Appeal authority to apply a narrower approach, even if that is inconsistent with the children's interests.

The financial remedy proceedings in the couple's divorce were concluded by a consent order in July 2010, which noted the husband's agreement that he had no interest in the former matrimonial home. The wife provided an undertaking at paragraph 4.4 to secure the release of the husband from the mortgage on the former matrimonial home by 30 September 2012, or for the property to be sold in default.

In November 2011, the wife applied to vary the undertaking in paragraph 4.4 so that the husband would be released from the mortgage or the property sold in default when their youngest child attained the age of 18, or either of their two children completed full-time education. She applied under s.31 of the Matrimonial Causes Act 1973, on the footing that the undertaking was equivalent to an order for sale under s.24A. This would require the court to take into account the children's best interests. The district judge dismissed the application, and the wife's appeal was dismissed. The Court of Appeal dismissed the wife's further appeal, holding the jurisdiction to vary the order was derived from the inherent jurisdiction of the court, rather than s.31 of the Act, and that it was not appropriate to exercise it in this case. The wife appealed to the Supreme Court.

For the Court of Appeal judgment, prefaced by a summary, click here. To view the Supreme Court proceedings, click here and scroll down to 'watch hearing'.