• The recent Supreme Court decision in Birch v. Birch confirms that there is jurisdiction to hear an application to vary an undertaking or “promise” in financial divorce proceedings following a wife’s application to be released from an undertaking to sell a former marital home.

    As part of the original order, the wife undertook to meet all mortgage payments on the family home, to indemnify the husband against any mortgage liability and sought to release the husband from the mortgage covenants. In addition, an undertaking was given by the wife that should the husband not be released from his mortgage obligations the house would be sold. The judgement confirms that courts can revisit a final consent order which many will argue can lead to uncertainly both in relation to existing orders and in seeking to negotiate new ones.

    The wife’s application that her undertaking should be varied, namely that there should be a delay in the sale of the property, will now be decided upon and the outcome will be awaited with interest.

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