Judicial Paternalism and Private Ordering on Divorce

Abstract

It is axiomatic that divorcing spouses cannot by agreement oust the jurisdiction of the court to award ancillary relief: Hyman v. Hyman [1929] A.C. 601. Finality can only be achieved by obtaining the sanction of the court in the form of a consent order, invoking a procedure which requires full disclosure of all material factors so that the court can exercise its own discretion on the basis of the information put before it: Matrimonial Causes Act 1973, s.33A; Livesey v. Jenkins [1985] A.C. 424. But out-of-court agreements made by the parties are not without significance. Far from it, they will be treated as a very important consideration should the court subsequently be asked by one of the parties to make an award of ancillary relief, and will not usually be departed from unless there are good and substantial grounds for concluding that injustice will be done by holding the parties to their terms: Edgar v. Edgar [1980] 1 W.L.R. 1410. Presumptive enforceability has been criticised as “the worst of both worlds”, as the parties must go to court to determine whether the agreement they have reached is legally binding: Pounds v. Pounds [1994] 1 F.L.R. 775, 791, per Hoffmann L.J. Either the agreement should bind, or it should be wholly disregarded.