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Family Law

The leading authority on all aspects of family law

02 DEC 2013

Evidence, Practice and Procedure: Financial Agreements: a ‘Concluded Agreement’ Test?

David Burrows

Solicitor Advocate

@dbfamilylaw

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsAutonomy after Radmacher

 In Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42, [2010] 2 FLR 1900 the Supreme Court said of a spouse's autonomy to make a decision as to what to agree (whether before marriage or on its breakdown):

 [78] The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best. This is particularly true where the parties' agreement addresses existing circumstances and not merely the contingencies of an uncertain future.

 As against this, district judges around the country are - on occasion - still refusing to approve consent orders even where parties are legally represented.

 TW v PL (Children Act 1989 Sch 1 Agreement) [2013] EWHC 3078 (Fam), Keehan J concerns an agreement under Children Act 1989 Sch 1 para 4, but the principles in terms of court approval are the same as under Matrimonial Causes Act 1973, s 25(2). The requirement for approval of an agreement remains the same: Edgar v Edgar [1980] 1 WLR 1410, (1981) FLR 19, CA as applied by Morgan v Hill [2006] EWCA Civ 1602, [2007] 1 FLR 1480. The court must conduct the CA 1989 equivalent of the MCA 1973 s 25(2) exercise (CA 1989, Sch 1, para 4 and Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813) before an order can be made. These requirements must now, surely, be seen through the autonomy prism asserted by Radmacher?

 The facts found, and legal reasoning of the court in, TW v ML are short. This may be for reasons of tact by the judge who makes reference to a chequered background of publicity by the mother and resentment of this by the father (whose refusal to honour the agreement led to the application). However, the reasons for abbreviating what might be seen as the Edgar process and the requirements of Family Procedure Rules 2010 Part 9 (or a parallel version of r 9.26 for children orders) and for concluding that the parties must be held to their agreement are stated by the judge thus:

 [7] I have been referred to the cases of Xydias v Xydias [1999] 1 FLR 683 and Edgar v Edgar [1980] 1 WLR 1410. The decision for me is whether the parties reached a concluded agreement to which they should be bound or whether there has been a vitiating factor which entitles the court to set aside the agreement.

 ‘Concluded agreement' test

 The judge held that there could be no ‘halfway house' if the court finds - as he did in this case - that there was a concluded agreement, and that there were no factors which could vitiate the agreement. This raises real questions concerning the interplay between the Edgar test (ie that the agreement is only one factor in the s 25(2) checklist), contract law principles (eg vitiating factors) on which much of the Edgar and Radmacher jurisprudence is founded, the court's duty to approve financial settlements (and the extent to which this applies under CA 1989 Sch 1) and the autonomy approach in Radmacher (for further consideration see ‘Mediated agreements, arbitral awards and consent orders' September [2013] Family Law by David Burrows). The questions remain.

 If the ‘concluded agreement' test is to be the criterion for telling parties that they must be held to their agreement, and the court draws up an order accordingly (as was also the case in T v T [2013] EWHC B3 (Fam), Parker J) then this may be a step beyond Edgar; and it is probably further than was contemplated by the Supreme Court in Radmacher. That said, it is surely to be welcomed. It lets grown-ups (parties who are sui juris) make their own decisions and is consistent with the way the post-Radmacher wind is blowing.

 David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

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