LORD JUSTICE WAITE: This appeal arises from the efforts of a husband and wife after marriage breakdown to achieve a "clean break" settlement of their financial claims. Like most couples, their principal asset was the home they had once both lived in and still jointly owned. Their solicitors, with the help (on the wife's side) of counsel, were able to negotiate an agreement under which all future maintenance claims on either side were to be extinguished, in return for the husband's surrender of his interest in the matrimonial home, so that the whole of it would become the wife's sole property.
So long as that bargain remained an out-of-court agreement, it would be impossible to claim for it the finality which both sides hoped to achieve. The common law will not enforce, and statute law renders void, any provision in an agreement purporting to restrict rights to apply to a court for an order giving financial relief. Far from being clean, the break would become liable to a painful re-joining if either side, whether because of second thoughts or because of changed circumstances, became dis-satisfied with the bargain. The only safe way of making their agreement watertight would be to incorporate it in an order of the court. It would then become immutable - save m the event of a radical change of circumstance, or of one party's consent to it being later found to have been obtained through the other's fraud or material non-disclosure. The couple's solicitors therefore negotiated a draft order giving the court's approval of the agreement. Two matters had to be resolved, however, before the necessary consent order could be obtained.
One related to timing. Ever since divorce was introduced into our legal system in 1857, it has been an absolute requirement that no order for permanent (as opposed to interim) financial support can be made until the decree nisi has been pronounced. The purpose, no doubt, was to avoid any step that might hinder a reconciliation, for which the door would need to be kept open until the moment of decree. The value of such a requirement is still recognised, as can be seen from the Lord Chancellor's Consultation Paper "Looking to the Future: Mediation and the ground for divorce" (Cm 2424 December 1993) which proposes (at Part 6 paragraph D 20) to retain it in principle, while for the first time introducing a power to dispense with it in "special circumstances".
The other related to proof of the fairness of the agreement. In most areas of our law, parties to litigation who are sui juris and independently advised can settle their differences on terms which are included by agreement in an order or rule of court (so as to be enforceable thereafter through the court process without the necessity to start fresh proceedings) with the authority of a judge who may not be aware of the terms of the deal at all (for example when they are indorsed on counsel's brief), still less be concerned with any question as to their suitability or fairness. That is not so in financial proceedings between husband and wife, where the court does not act, it has been said, as rubber stamp. The judge will be concerned, whether the order be made by consent or imposed after argument, to be satisfied that the criteria of S 25 and 25 A of the Matrimonial Causes Act 1973 have been duly applied.
When in this case the spouses' solicitors came to court to have their agreement approved, it was appreciated by everyone that effect could not be given to such approval there and then. This was because the decree nisi had not yet been pronounced, and was not due to be pronounced until a few days later. Nevertheless the Registrar (or District Judge as he would now be called) - who already had in his possession the court file containing the affidavits of means of the parties and who had been supplied that day with the statutory particulars designed to enable the compromise to be judged in the light of the S25 and 25A criteria - felt able to say that the agreement was a suitable one for incorporation into a clean break consent order dismissing all financial claims on both sides. The Registrar accordingly initialled the order, but it was not at that point drawn up. The decree nisi was duly pronounced a few days later, and then a month passed before the order was produced by the court in its final form as a perfected and sealed order. The date appearing on the perfected order was not the date of its sealing. The court official had assigned to it the date of the occasion when the proceedings had last been before the Registrar - that is to say the day on which he had approved and initialled the draft consent order. No one at that stage noticed that there was anything amiss.
Not long afterwards the wife changed her mind about the agreement. She changed her solicitors too. They were quick to spot that the consent order carried a date antecedent to that of the decree nisi. Before Singer J they contended successfully that the order was consequently a nullity. The judge ruled that there was no possibility of amending it under the slip rule, and set it aside on the ground that it had been made without jurisdiction. That opened the way for the wife to assert that the original agreement was not binding on her, and that it should now be set aside because its terms were unjust. Consequent evidence and argument about the fairness of the original agreement, the quality of the advice given to the wife by her former solicitor, and the terms of any new order which should be made by the judge if he thought the original agreement was unjust, extended the length of the hearing substantially. In the upshot the judge ruled that the original agreement had been unjust, on the ground that there was such a disparity between the income and pension rights of the husband and the modest earning powers and expectations of the wife as to make it an unsuitable case for any clean break order at all. The wife should not therefore be held to it, and a fresh order should be made to include provision for periodic maintenance for the wife which would keep her future maintenance claims alive.
The appellant husband now contends, in this court, that the judge was wrong on both counts.
Before describing in more detail the circumstances in which the impugned order was made, it will be useful to look at the procedural background, which was helpfully explained by counsel in the course of their clear and well researched submissions.
The nature and function of the Special Procedure for undefended divorce.
In outward form English divorce law still does its best to emphasise the institutional solemnity of marriage by insisting that it can he ended only by a judicial pronouncement, and that the terms of any financial compromise accompanying or following divorce are judicially approved. In practice, procedural corners have had to be cut in the interests of saving time expense and heartache within a system that has to accommodate more than 150,000 unopposed divorce petitions annually.
One such development has been the enlargement of what began as a "Special" Procedure until it became the norm for most unopposed divorces. It still bears the superficial hall-marks of a full-scale judicial process, in that the proceedings are spoken of as a "cause" and there is reference in the rules to their outcome as a "trial". Closer inspection reveals that such descriptions have more pageantry than substance. Although the Special Procedure as now laid down by the Family Proceedings Rules does not greatly differ, I will refer, in summarising it, to the Rules which were in operation at the dates in 1990 and 1991 relevant to the present case, namely the former Matrimonial Causes Rules 1977 (as amended), and I will refer to the District Judge by his then title of Registrar.
Following presentation of the petition, the petitioner's solicitor lodges an application for "directions for trial" together with a standard affidavit in the form required to verify the particular ground alleged in the petition. In routine cases (i e where no problem of costs or of approving arrangements for the children arises) the Registrar gives "directions for trial" by entering the cause in the Special Procedure list and thereafter considers the evidence filed by the petitioner. If he is satisfied that the petitioner has sufficiently proved the contents of the petition and is entitled to the decree sought and any costs prayed for, he will make and file a Certificate to that effect. The court then sends notification to the parties of the date time and place fixed for the pronouncement of the decree nisi. The parties are also told that their attendance at the pronouncement of decree is not necessary. The actual process of pronouncement of the decree has become reduced to a very brief ceremony of a purely formal character in which decrees are listed together in batches for a collective mention in open court before a judge who speaks (or nods) his assent. The right to a decree absolute six weeks thereafter is automatic, on the application of either party. (A more detailed summary of the procedure will be found in the 15th Edition of Rayden at page 528.)
The procedures for dissolution of marriage on unopposed petitions in England have thus become truncated over the years to the point that the sole truly judicial function in the entire process is that of the Registrar when granting his Certificate. Everything that follows is automatic and administrative, and the open court pronouncement of the decree is a pure formality, to which the pronouncing judge (who under current procedures may himself be a District Judge) has no option but to consent. If any party attends the ceremony of pronouncement and objects, the judge's powers are accordingly limited to directing that the petition shall be stood out of the pronouncement list, to enable some substantive application to be made to vary or discharge the Registrar's certificate - see Day v Day 1980 Fam 29.
Financial Consent Orders
When the House of Lords ruled in Livesey v Jenkins (1985 AC 424) that the duty of disclosure of assets was owed by spouses not only to each other but to the court, it did so upon the basis that it was the function of the court in every case, whether it was proceeding by consent of the parties or after a contested hearing, to be satisfied that the provision made by the order fulfilled the criteria laid down by S 25 of the Matrimonial Causes Act 1973. It is clear, however, that this was intended to be an assertion of general principle only, and not to impose on the court the need to scrutinise in detail the financial affairs of parties who came to it for approval of an independently negotiated bargain. It could not be otherwise, for earlier that year Parliament had specifically enacted a more cursory regime for the scrutiny of consent orders. S 7 of the Matrimonial and Family Proceedings Act 1984 inserted into the Matrimonial Causes Act 1973 a new S 33A, of which sub-section (1) reads as follows:
"S 33A (1) Notwithstanding anything in the preceding provisions of this Part of this Act, on an application for a consent order for financial relief the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application....."
The "prescribed information" is that required by MCR 76A (now re-enacted and amended by FPR 2.61) which (omitting immaterial words) provides:
"76A (1) .....there shall be lodged with every application for a consent order.....minutes of the order in the terms sought, indorsed with a statement signed by the respondent to the application signifying his agreement, and a statement of information which may be made in more than one document and shall include -
(a) the duration of the marriage, the age of each party and of any minor or dependent child of the family;
(b) an estimate in summary form of the approximate amount or value of the capital resources and net income of each party and of any minor child of the family;
(c) what arrangements are intended for the accommodation of each of the parties and any minor child of the family;
(d) whether either party has remarried or has any present intention to marry or to cohabit with another person;
(f) any other especially significant matters.
Forms for use in supplying those particulars were prescribed by Practice Direction (the Form in force for present purposes being that annexed to the Practice Direction at 1990 1 WLR p382). They run to no more than two pages, and the space allowed in the boxes for financial information is very restricted indeed.
The effect of S 33 A and the Rules and Directions made under it is thus to confine the paternal function of the court when approving financial consent orders to a broad appraisal of the parties' financial circumstances as disclosed to it in summary form, without descent into the valley of detail. It is only if that survey puts the court on inquiry as to whether there are other circumstances into which it ought to probe more deeply that any further investigation is required of the judge before approving the bargain that the spouses have made for themselves. It is interesting to note that although this statutory limitation might be thought to provide an exception to the principle asserted in Livesey v Jenkins, it was not apparently so regarded by the House of Lords, where Lord Brandon preferred to describe it (at page 444) as a "step in the right direction".
The timing of consent orders.
It is common ground that the effect of a financial consent order is to exercise one or more of the powers under S 23 or 24 of the 1973 Act. Those powers are only capable of being exercised "on granting a decree.....or at any time thereafter". The effect of these words is to deny jurisdiction to the court to make a consent order at any date before the pronouncement of decree nisi (we have already indicated in the course of argument our rejection of Mr. Duckworth's submission that this temporal limit was in any way abated by S33 A so as to authorise consent orders taking effect before the date of decree).
The obtaining of a financial consent order, like that of a decree nisi, involves a judicial exercise at one stage only. That occurs at the point where the Registrar signifies his approval of the draft order. If a decree has already been pronounced, he can make the order there and then. The approval date and the order date will in that instance be the same.
If, on the other hand, the pronouncement of decree is still pending, the Registrar's judicial function will include, in addition to the approval of the draft order, the necessity to choose between two possible courses of action in regard to the subsequent machinery required to bring into being an order giving effect to the draft which he has approved.
One course (and this - we were told by counsel - is the course followed in the great majority of cases) is to include a statement of his approval of the draft order on the face of the certificate which he is giving for the purposes of the decree. If that path is followed, the draft order will automatically become a consent order of the court at one and the same moment as the decree is pronounced.
The other course is to direct that the draft order shall come into being as a substantive order at a date on or after the day on which a decree nisi is to be pronounced.
Whichever of those two courses is selected, no further judicial function is required. The administrative wheels simply turn. If the first course is chosen, no difficulty is likely to arise (although I shall mention in a moment one unfortunate case where it did). The draft order will enter the file that goes into court on pronouncement day, and the court staff will arrange for the decree nisi and consent order to be printed out together, both bearing the same date, i.e. the date of pronouncement of the decree. If, however, the second course is chosen, there is a risk that the administrative wheels may turn too soon, with the result that the order is made (disastrously) before the day on which the decree is eventually pronounced.
Board v Checkland 1987 2 FLR 257 is a case in which it had been intended to follow the first course (i.e. have the order pronounced at decree nisi) and shows how even under that (safer) procedure administrative slips are liable to occur. It also provides an instructive illustration of the general perils that can beset any draft consent order while it remains in the limbo that lies between approval and perfection. The parties submitted to the court an agreed application for a lump sum order on 17th May. Their decree nisi had not yet been pronounced, but was due for pronouncement in the following month. The Registrar indorsed the application "by consent order as prayed on decree nisi" and gave informal instructions that the order should not be made until decree nisi. In due course a decree was pronounced on 17th June. In the meantime, however, someone on the court staff had come across the agreed application with the Registrar's indorsement on it. He or she was unaware of (or had overlooked) the informal instructions that had been given for the order not to be drawn up until decree nisi. So it came about that on a day in May or early June (which is not mentioned in the law report but which I shall call "the actual order date") while a decree nisi was still awaited, the consent order was perfected and sealed. The date attributed to it was 23rd May (the date of the Registrar's indorsement of approval). The order was held by the Court of Appeal to have been made without jurisdiction. It is to be noted that it would have been pointless in that case to amend the date on the face of the order under the slip rule by substituting the actual order date - for the actual order date was itself fatally antecedent to the date of pronouncement of decree nisi.
The dating of orders
Consent orders made in the matrimonial jurisdiction are not subject to any special rules as to their dates of operation or as to their amendment on the ground of error in their drawing up, but are subject to the general rules which are as follows.
RSC Order 42 Rule 3 provides (omitting irrelevant
words)
"(1) .....a judgment or order of the Court.....shall take effect from the day of its date.
(2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court.....orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day."
It was not disputed that this Rule applies equally in the County Court. RSC Order 20 Rule 11 (reproduced for the County Court as CCR Order 16 Rule 5) - generally called the slip rule reads:
"11. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal."
The two features of those rules relevant to this case are:
(1) The court has power under 0 42 Rule 3 (2) when initially making an order to direct in advance (or retrospectively) that its order shall bear some date other than that of the day on which it is actually pronounced
(2) It is settled law that an order which is a nullity, because it was made (or directed to be dated) on a day when the court had no jurisdiction to make it, cannot have validity conferred on it retrospectively by use of the slip rule to change its date to a day on which the court, had it chosen that day on which to make (or date) its order, would have had jurisdiction to make it -Keystone Knitting Mills' Trade mark 1929 1 Ch 92, Munks v Munks 1985 1 FLR 576, and Board v Checkland supra). Such is the procedural background against which I can now turn to describe the circumstances of the consent order that was obtained in the present case.
The parties were married in October 1960. They had three sons, all of whom are now adult and in their twenties.
By December 1988 their marriage had broken down after 28 years. The husband was then aged 51 and the wife 46. He was the regional manager of a Building Society with a salary in the region of £30,000 per annum, and she had been working part time as an auxiliary nurse, earning £3200 per annum. She had however suffered a recent whiplash injury in a motor accident, which might affect her ability to continue nursing work for the future.
The wife remained in occupation of the matrimonial home in Northampton which was in their joint names. It had a value of about £140,000 and was subject to a low rate mortgage from the husband's employers of £20,000, secured on an endowment policy. In the summer of 1989 the circumstances of each of them changed. The wife was advised that she would have to give up nursing, because of the continuing effects of her accident, and she was able to find work as a mobile warden for sheltered accommodation. The husband accepted voluntary retirement terms from his employers under which he received a lump sum net of tax of £53,600, the bulk of which he invested (with the help of a low interest mortgage of £15,000 from his former employers) in the purchase of a home of his own for £59,000. He also received a pension starting at £17,773 but subject to periodic increase. He was able to get new work as an administrator (first for the police and later for a firm of solicitors) at a gross salary in the region of £12,000 per annum. The parties' invested savings were worth around £17,500.
In the summer of 1990 the wife issued her formal claim for financial relief in the divorce proceedings which she had by then instituted. Affidavits of means were filed. Their accuracy has not been criticised (this being a case where no criticism is made of the husband for non disclosure of assets or putting the wife under unfair pressure to settle on his proposed terms). In the negotiations which were then already on foot the husband expressed his wish for a clean break settlement. The stance taken by the wife was that she wanted to remain in the matrimonial home, although her solicitor advised her that if the case went to court at a contested hearing the judge would regard that property as being too large for her needs and would probably insist on a sale. In the end, after the wife had consulted counsel, terms were agreed in early December 1990 for a clean break on the basis that the wife would take the entire interest in the matrimonial home. The two solicitors drew up a very simple form of draft order which recited the husband's undertaking to redeem the mortgage on the former matrimonial home and continued:
BY CONSENT IT IS ORDERED THAT:-
1. The Respondent do within............days from today transfer to the Petitioner all his estate and interest in [the former matrimonial home]
and then set out orders in standard form dismissing the claims of each party for financial relief against the other and making no order as to costs.
An appointment was duly taken out with the Registrar for approval of that document on 11th December 1990. The state of the divorce proceedings at that point was that the Registrar had given his certificate on 31st July 1990 but (unusually) had not at the same time given directions for trial. The result was that when the solicitors attended the appointment on 11th December, no date for pronouncement of decree had yet been fixed.
Each of them had prepared, before they went in to the Registrar's room, forms giving the Rule 76 A particulars. The information, though succinct, was accurate. The value of the former matrimonial home, the mortgage on it, the like particulars of the husband's new home, the surrender value of his insurance policies, his annual income from pension (£13,530) and earnings (£6348), and the wife's annual earnings (£2892) were all mentioned. The forms were handed in at the outset of the appointment.
The solicitors were not engaged with the Registrar for long. In the evidence which they gave to the judge about the appointment, one of them thought it had lasted 10, the other for 15, minutes. At the end of the appointment the Registrar completed and slightly altered paragraph 1 of the draft so that it read:
"1. The Respondent do within 28 days from today Decree Absolute transfer to the Petitioner all his estate and interest in [the former matrimonial home]."
He also added the following handwritten endorsement:
"11.12.90. Both solicitors appearing and consenting. Terms of Order approved."
and initialled it.
In regard to the discussions leading up to that indorsement, it was common ground on the solicitors' evidence that there had been some talk at first about procedure, because all three of them (the Registrar and both solicitors) were aware that no decree nisi had yet been pronounced. As to exactly what else was discussed the wife's former solicitor was unable to be specific; when asked how the matter was presented to the Registrar generally - what he was told, what discussion there was about the order - he said he had no recollection. The husband's solicitor was able to give a slightly fuller account. After he had been referred in evidence to the Registrar's indorsement on the draft order, the relevant questions and answers in chief were as follows:
Q What was the Registrar's solution to the problem about the decree nisi?
A The Registrar said that he would approve the order in principle but would let it lie on the file until the decree nisi was granted.
Q Do you recall whether, before giving such approval, there was any talk about the merits?
A Yes, there was some talk.
Q Did the Registrar appear to read the Rule 76 A statement beforehand?
A To the best of my knowledge, he did.
Q Can you say whether ..... he read the affidavit?
A I am not in a position to say.
Q Do you go, and have you in the past gone, frequently before [the Registrar naming him] on pre-trial reviews?
A Yes, I have.
Q Can you say what his practice is normally in relation to reading affidavits?
A I find that generally he has acquainted himself with the background of the case prior to the review.
Q Did he express on this occasion any comment on the provision made by the draft order?
A Yes. I recollect that he thought the terms were reasonably generous.
Q Presumably, therefore, he found no difficulty in approving it?
A I was not aware of any difficulty.
When it was put to him in cross-examination that the "problem of the decree nisi and the lack of it caused some consternation", the witness answered:
A "I was not aware of any particular consternation. It was raised before I went in and, as I recollect, [the Registrar] took it fairly calmly, approved the order and said it would lie on the file."
The next day (12th December) the Registrar gave directions for trial in the divorce suit by appointing 18th December as the day for pronouncement of decree nisi. He did not make any change to his certificate to refer to the proposed consent order or give any direction that the approved draft should be before the court on the day of pronouncement.
The result was that when, on 18th December, the decree nisi was duly pronounced in open court, no reference at all was made to the approved draft order. Nor was any reference to it to be found in the decree nisi as drawn up. The draft order simply lay, where the Registrar had directed it should lie, on the Court file.
About a month later, the wife's solicitor wrote to the court on 21st January saying "we do not seem to have received the ancillary relief order which should have been issued after decree nisi" and asked for a copy of it. That inquiry led the court staff to remove the draft order from the file and use it as the basis of a sealed and perfected order which was sent to the parties on 25th January. The judge made a finding that the perfection of the order took place on a day (to which I shall refer as "the sealing date") falling between 21st and 25th January. The perfected order read (so far as relevant) as follows:
"BEFORE MR. REGISTRAR [naming him]
SITTING AT [the court address]
ON 11 DECEMBER 1990
UPON HEARING Solicitors for both parties
UPON the Respondent's undertaking to redeem the mortgage of the [former matrimonial home] before the transfer hereinafter ordered to be made by him
BY CONSENT IT IS ORDERED that:
1. The Respondent do within 28 days from Decree Absolute transfer to the Petitioner all his estate and interest in [the former matrimonial home]."
The remaining paragraphs of the order as perfected followed the terms of the draft order, including the paragraph dismissing the claims of the parties to financial relief.
It will be remembered that the mortgage on the former matrimonial home (which the husband had undertaken to discharge) was partly secured by an endowment insurance policy. It had a surrender value (£6866) which it was proposed to apply in part satisfaction of the amount required to redeem the mortgage (which then stood at £8000). The policy having been effected in the parties' joint names, the wife's signature was required on the formal surrender of the policy. She refused to give it, objecting that this went beyond anything that had been agreed in the consent order. The husband's solicitors insisted that she was bound to do so, as part of the mechanics of giving effect to the consent order. The wife maintained her objections. That impasse was eventually resolved in May 1991, when the mortgagee of its own motion applied the proceeds of the policy towards redemption of the mortgage, the balance of which was paid off by the husband.
When the husband then sought to have the decree made absolute, the wife objected. She instructed new solicitors, who on reading the file noted that the consent order purported to bear a date (11th December 1990) antecedent to the date of decree nisi. On 18th September 1991 they wrote to the husband's solicitors pointing this out, referring to Board v Checkland (supra), and saying that the consent order must be regarded as a nullity. The husband's solicitor was very surprised by this news. In his reply he stated that his recollection was that at the appointment of 11th December "the Order was approved in principle but would not be made until such time as Decree Nisi was pronounced." Something must, he agreed, have gone wrong. He did not at that time know what the exact history of the drawing up of the order had been. That (as I shall later describe) only came to light as a result of detective work by Singer J in the county court file. So it is not surprising that the husband's solicitor felt bound at that stage to agree that the order had been made without jurisdiction. As for the Registrar himself, his response when the matter of the date of the consent order was taken up with him was to write to the parties' solicitors on 2nd October 1990 saying "I agree that my order of 11.12 90 is a nullity (despite both solicitors being present and consenting)" and stating that he would consider the matter on 30th October.
On that day the Registrar had the husband's solicitors and the wife's new solicitors before him. The husband's solicitors felt bound (for the reasons I have described) to accept that the consent order had been a nullity and to allow the wife's application for financial relief to be re-opened. The Order made by the Registrar accordingly recited "the order purporting to have been made on 11th December 1990 being a nullity" and proceeded to give directions for the filing of further evidence and directed an exchange of valuations. On 3rd March 1992 the husband gave notice in the proceedings to the wife to show cause why the agreement contained in the consent order should not be carried into effect, and on 14th July 1992 the Registrar directed that all proceedings should be transferred to the Family Division.
They came in due course before Singer J. At that point the husband's advisers were still disposed to accept that the consent order must have been a nullity, on account of its purported date. The judge, at an early stage of the hearing, called for the county court file. His eye lit upon the correspondence which disclosed the history in the drawing up of the order which I have related, and which was to lead to the finding to which I have already referred -namely that the consent order was not in fact perfected until the sealing date.
That discovery prompted Mr. Duckworth, the husband's counsel, to submit that the consent order was a fully effective order since it had been made on the sealing date -a date which was subsequent to the date of decree nisi. The purported attribution to it of the wrong date (being the date of the Registrar's original approval of the draft) was an obvious clerical error which could, and should, be readily corrected under the slip rule by substituting the order's true date, which was the sealing date. The judge rejected that submission. He made an order formally setting aside the consent order, and proceeded to deal on its merits with the husband's application to enforce the agreement to which that order had purported to give effect.
That led to a detailed investigation by the judge of the justice of the agreement on lines approved by the Court of Appeal in Edgar v Edgar 1980 1 WLR 1410 and Camm v Camm 1983 4 FLR 577. The wife's former solicitor was closely questioned on his own advice, and the instructions he had given to counsel - a form of inquiry which appeared to be -justified by the references (on the part of Ormerod LJ in the authorities just mentioned) to the quality of the legal advice tendered to the wife as being a relevant consideration. The judge concluded that this was not a case in which a clean break could have been reached consistently with fairness to the wife, in view of the disparity between the parties' respective incomes and income potential. He declined to uphold the agreement embodied in the purported consent order, and substituted an order that the wife should be entitled, in addition to a property transfer order in respect of the husband's share in the former matrimonial home, to periodic maintenance at the rate of £6300 until further order (reducible to £5700 in the event that the husband should nominate in her favour the death in service benefit to which he was entitled under his pension arrangements).
In seating his grounds for setting aside the consent order as a nullity, the judge first acknowledged that this case was different from Munks v Munks and Board v Checkland (supra), in that .....
".....here this order was in fact drawn up and sealed, as I have found, at a date when there was jurisdiction to make the order, although the document was then back dated to a time when there would have been no jurisdiction to make it. The question is therefore not so much, when was an order made, but rather, was an order made? For if it can properly be held that this order was made at the time in January when it was in fact produced, then there was jurisdiction to make it
He then proceeded to answer the question thus posed as follows:
"Submissions which I shall summarise were made to me by Mr Duckworth to the effect that the drawing up of the order in late January 1991, as I have found was when that was done, was purely an administrative action carried out by one of the court's staff, validly to reflect what transpired at the hearing on 11th December 1990, and that the ante-dating of the order did not affect its validity and could be corrected under the slip rule. He advanced detailed arguments in support of this basic proposition and put it in its historical context so far as the applicable rules are concerned. But the essence of his case on this point can, I hope, fairly be stated as succinctly as I just have.
This is a submission which I find to be ill founded. It ignores what seems to me to be the fundamental factor that the making of an order, as opposed to the preparation of a document which reflects its terms, is a judicial act. A document to recite the terms of the order reflecting the agreement can only properly have been prepared after the decree nisi, if a judicial act on or after the pronouncement of decree nisi had resulted in an order in those terms. I am unable to construe from the events as we know them, that there was any occasion when this took place.
First, we know that on llth December 1990, the district judge and both solicitors were aware that there was no jurisdiction to make an order there and then. The only record of what transpired are the words written by the Registrar on the draft, "terms of order approved". Given that those words could not have been intended to indicate that an order was made there and then, they can no more easily be construed to reflect an intention without more ado to make an order in futuro.
Next, we know, and I have already referred to the fact, that the Registrar did not adopt the course which was open to him of amending his certificate so that on decree the judge would make an order in the agreed terms.
Next, it might be argued, and was by Mr Duckworth, that the Registrar intended that after the decree nisi an order in terms of the draft should be drawn without any further judicial act. I am not satisfied that it would have been open to the Registrar to take that course. He would effectively have been making an order then on 11th December 1990, not to be drawn up until a subsequent date. To my mind that is precisely equivalent to making the order then, but delaying the production of the document recording it. That is precisely what the Act provides is an ineffectually premature attempt to exercise jurisdiction which has not yet come into existence. It is of course true that circumstances sometimes arise where the terms of a consent order are indicated to a judge who then directs that the order shall not be drawn up until some future event has occurred. This is a useful device where, for instance, a condition precedent to the effectiveness of the agreement has not yet occurred so that the agreement may fail. But if and when the document to reflect such an order is drawn up, it will bear upon if the date of the hearing before the judge and not the date when the document is prepared.
Finally, as one way in which it would have been possible effectively to produce a valid order in this case, the Registrar might have taken steps to secure that the file should be returned to him once the decree nisi had been pronounced when, without requiring the attendance of parties or solicitors, he might have decided to make an order in the terms of which he had already signified approval. The order he would then have made, when drawn as a document, would then have borne the date when he exercised that judicial function. But there is nothing to indicate that this was the course which the Registrar either suggested he would take, intended to take, or did take.
I therefore conclude that there was ho judicial occasion after the moment of pronouncement of the decree which could have justified the court staff in drawing an order which no judge or Registrar had ever effectively directed should be made. Thus I answer "No" to the question earlier posed: "Was an order made?".
My interpretation of that reasoning is that the judge found the consent order invalid on one or other or both of the following grounds:
(1) The Registrar had no power on a date before decree nisi to direct that the order should be made on a date subsequent to decree nisi
(2) A consent order is only valid if some "judicial act" is brought to bear upon it on or after the date of decree nisi.
It is necessary, in considering the first ground, to bear in mind that there are several ways in which an order may be made operative at a date subsequent to that on which it receives judicial approval. One is for the court to direct that the order shall not be drawn up and perfected until the future date or eventuality has occurred. Another is to state on the face of the order that it shall not become operative until the future date or eventuality. Yet another is to direct in advance under 0 42 R 3 (2) that the order is to be dated as of some later day than that on which it is pronounced. In the first two cases the order bears the date on which it is pronounced. In the last case the order bears the date which it has been directed to bear.
The evidence of the husband's solicitor was that the Registrar at the hearing on 11th December 1990 "said that he would approve the order in principle but would let it lie on the file until the decree was granted". That evidence was not contradicted by the wife's solicitor, and I do not understand it to have been rejected by the judge. The language used by the Registrar may have been informal, but the sense of it, to my mind, is plain enough. He gave advance approval to the order on that day (11th December) upon the footing that such approval would remain inchoate, and would not become the subject of any order of the court, until a date falling after the pronouncement of decree nisi. That seems to me to be a perfectly valid method of enabling consent orders to be made after decree nisi with the benefit of an approval obtained before decree nisi. Indeed that would appear to be precisely the process which comes into play whenever the parties adopt the more common practice to which I have already referred, namely taking a consent order on the same occasion as the pronouncement of the decree. The Registrar (now District Judge) in such cases first approves the draft consent order in advance of the decree nisi, and then, as part of his "directions for trial", dispatches it to the "trial hearing" at which it will receive automatic approval from the Judge or District Judge who is given formal responsibility for pronouncing the decree. The judge's first ground for finding the order invalid was therefore in my judgment erroneous.
When the judge used the expression "judicial act" he intended, I am sure, to use it in the sense in which it would normally be understood - that is to say as describing an action which is not merely formal but requires an independent judgment by its maker as to whether the act should be done or not. It has been noted already that in the streamlined procedures which now obtain for unopposed divorce, the scope for any "judicial act" in that sense is very restricted indeed. In the suit itself, the only steps which can properly be called judicial acts are the giving by the Registrar (District Judge) of his Directions for Trial and his Certificate: all that follows is either administrative or formal. That applies even to the culminating event in the whole process - the pronouncement of the decree itself; because although that is in a limited sense a judicial action (in that the Rules require it to be performed by a judicially qualified person), the pronouncer has no discretionary power (save adjournment) and acts as a virtual cipher (Day v Day supra). Similarly, in regard to the obtaining of a consent order, the only relevant "judicial act" is that of the Registrar (District Judge) when he certifies his approval and gives any necessary directions as to when and how such approval is to be incorporated into an order of the court. The procedures that follow are vital, for without them the desired approval can never be given legal effect, and they will need to be carried out carefully and conscientiously by people with suitable skill and training; but none of them will involve a fresh or independent judgment being brought to bear on the merits of granting the approval itself. The judge appears to have accepted in this case that the Registrar's approval was duly given on 11th December 1990, but to have taken the view that such approval was incapable of forming the basis of a consent order after decree nisi unless some further "judicial act" had intervened thereafter (such as a fresh consideration by the Registrar). In my judgment there was neither the scope nor the necessity for any fresh appraisal, after decree nisi, of the merits of the proposed consent order. The approval it had already received was a continuing one, and the only further step required after decree nisi was that it should be drawn up and sealed and given its true date - the sealing date. The judge's second ground for finding the order invalid was therefore also erroneous.
It follows that, for the reasons indicated and with regret at having to take a different view from a judge with acknowledged expertise in this field, I consider that the consent order was validly made; that the attribution to it of the date of the appointment before the Registrar instead of the date of sealing was a pure clerical error; and that the judge ought to have ordered the consent order to be amended under the slip rule by inserting the sealing date as its true date.
It is unnecessary, in view of that conclusion, to deal with the second limb of the appeal and go into the question whether the judge was right to have set aside the agreement which (with professional advice) had been reached between the parties. I am grateful, none the less, for the interesting arguments that were addressed to us under this head. They demonstrated that the question of the setting aside of out-of-court financial agreements is an extremely problematic area of the law. It is better to stay out of it, and enjoy the relative security and peace of mind which an order approved by the court can supply. All the more reason, therefore, that such orders should be drawn up and dated with the utmost care, to avoid a recurrence of the problems which arose in the present case and which must have involved much additional anxiety and expense for the parties. A putting together of heads by Chief Clerks and District Judges ought to make it possible, for those who have not done so already, to devise for their court files and computers a suitable warning system to prevent any financial consent order being inadvertently allocated a date antecedent to the decree nisi. The present case provides an object lesson in pointing to the serious consequences which are liable to follow if such precautions are overlooked.
I would allow the appeal and substitute for the order made by the judge a direction that the consent order purportedly dated 11th December 1990 be amended under the slip rule by changing the date to 25th January 1991.
LORD JUSTICE HOFFMANN:
I agree that this appeal should be allowed for the reasons given by Waite LJ. The judge said of the words "terms of order approved" written by the District Judge on the draft consent order:
"Given that these words could not have been intended that an order was made then and there, they can no more easily be construed to reflect an intention without more ado to take an order in futuro"
Why not? One should, I think, attribute meaning and, if possible, validity, to what the District Judge was doing. The fact that he had written the words on the draft seems to me clearly to show that he did not contemplate any more judicial ado on his part; not, at any rate, unless some change of circumstances was drawn to his attention. He knew, as the judge found, that he could not make an order with immediate effect. Therefore, to give any meaning to what he was doing, he must have intended that the order would take effect as from a future date. This he had power to do under RSC Ord 42, r.3. In my judgment it is what he did.
There is more than one lesson to be learned from this case. The first, as my Lord has pointed out, is the need for care in drawing up orders. The second concerns the grounds upon which the court may refuse, as the judge did in this case, to give effect to an agreement between the parties which has not yet been incorporated in a valid consent order. In view of our conclusion that there was a valid consent order, we have not had to express a view on this aspect of the matter and I shall not do so. But it does seem to me that the law is in an unsatisfactory state. There are in theory various possible answers to the problem. One might be that an agreement between the parties, at least where each has independent legal advice, is binding upon them subject only to the normal contractual remedies based on fraud, misrepresentation, undue influence, etc. At present, the policy of the law as expressed in Hyam v. Hyam [1929] A.C. 601 is against such a solution. The court retains its supervisory role and only its order gives finality. Another answer might be that when parties are negotiating with a view to an agreement which will be embodied in a consent order, everything should be treated as without prejudice negotiation until the order is actually made. In the latter case, the parties would know that until the court had given its imprimatur, nothing which they had negotiated was legally binding or even admissible. If one of them changed his or her mind, they would have either to go back to the negotiating table or litigate the matter de novo. This may be tiresome, as in the case of a house purchase where one party changes his or her mind before contracts are exchanged. But the parties would at least know where they stood. The result of the decision of this court in Edgar v. Edgar [1980] 1 WLR 1410 and the cases which have followed it is that we have, as it seems to me, the worst of both worlds. The agreement may be held to be binding, but whether it will be can be determined only after litigation and may involve, as in this case, examining the quality of the advice which was given to the party who wishes to resile. It is then understandably a matter for surprise and resentment on the part of the other party that one should be able to repudiate an agreement on account of the inadequacy of one's own legal advisers, over whom the other party had no control and of whose advice he had no knowledge. The appellant's counsel, who has considerable experience in these matters, told us that he reckoned that in Northampton an agreement has an 80% chance of being upheld but that attitudes varied from District Judge to District Judge. In our attempt to achieve finely ground justice by attributing weight but not too much weight to the agreement of the parties, we have created uncertainty and, in this case and no doubt others, added to the cost and pain of litigation.
LORD JUSTICE NEILL: I agree that this appeal should be allowed for the reasons given by Waite LJ.
Ordered: Appeal allowed with costs. Costs below not to be interfered with. Costs of Mrs. Pounds not to be enforced without leave of the court. Order Nisi against the Legal Aid Board to show cause, if they wish, why they should not pay the costs of the successful Appellant in the Court of Appeal. Order under Section 18(4)(c) that it is just and equitable to make an order in favour of Mr. Pounds.
