Stowe Family Law has highlighted a case where a woman involved in a lengthy mortgage battle with her ex-husband has won her appeal at Britain’s highest court to have her case heard and determined by a lower court. The case could affect other divorcing couples who agree to a delayed sale of property, it claimed.
In Birch v Birch the former couple had reached a post-divorce agreement where she would receive the husband’s share of the family home and continue to live there with their two children. In return, she took on the mortgage payments to free her now ex-husband from further financial liability for the property.
The couple agreed if she was unable to free him from his mortgage obligations by the end of September 2012, she would put the house on the market. However, in November 2011, despite keeping up mortgage repayments the wife made a fresh application to the courts asserting she was unable to release her husband from the mortgage covenant by the September deadline agreed.
Instead, Birch wanted to be able to postpone the obligation to free her ex-husband from the mortgage via sale of the home until their son turned 18 in 2019. The ex-husband fought the case and won citing that the courts did not have jurisdiction to release his ex-wife from the original agreement.
Supreme Court decision
However, she pursued the case to the Court of Appeal and then the Supreme Court where she won the right to have her case for changing the timeline heard in a lower court.
Stowe Family Law managing partner Rachel Roberts said: “The ruling confirms that the court’s powers are limited to releasing her from the existing undertaking and accepting another one in its place, rather than actually varying (changing) the original undertaking.”
But added: “I would say that if the wife succeeds on this and is able to delay the order for sale because she is unable to remove him from the mortgage, this potentially has wide ranging implications for parties who have already entered into a consent (financial) order relying on undertakings for an order for sale, in the belief that they have a long stop date (deadline) for a sale.”
She said all lawyers will need to be much clearer about warning future clients of the risk of the court varying the timescale in future.