We have today received the judgment in the case of Birch v Birch from the Supreme Court.
The wife will now be allowed to have an urgent hearing to try and seek a court order that a previous undertaking by her be discharged and replaced with a new one. The original court order said that the wife had to either remove the husband from the mortgage or, if that couldn't be achieved, the house would have to be sold to secure that release. The wife asked the court for another 7 years to remove the husband from the mortgage or sell the house at that time if this could not be achieved. The court of appeal did not allow that request to proceed but the Supreme Court have stated that an urgent hearing needs to be listed.
If the wife is successful in her appeal there will no doubt be a rush of cases where applications are made to try and alter these clauses in old divorce settlements. These clauses are often used so the court will have to be careful about the circumstances within which any appeal is permitted.
The court have already said that they will be considering:
* The welfare of the children;
* Whether there has been any significant change in circumstances since the wife gave her original undertaking;
* What, if any, prejudice will the husband suffer and can he be compensated in some way if the court allows the appeal.
This is definitely one to watch. I am sure we will receive enquiries about this case. If we can help you or anyone you know then call us on 0845 128 6960.