Law Report: Consent order effectively made: Pounds v Pounds - Court of Appeal (Lord Justice Neill, Lord Justice Hoffmann and Lord Justice Waite), 24 February 1994

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A consent order for a clean break settlement approved by a registrar before decree nisi, on the footing that such approval would not become the subject of any court order until after the pronouncement of decree nisi, was a valid order.

The Court of Appeal allowed a husband's appeal from Mr Justice Singer's decision that a consent order was a nullity.

Following the marriage breakdown, the spouses and their legal advisers negotiated a clean break settlement of their financial claims. The registrar approved and initialled the draft consent order a few days before the decree nisi was pronounced. A month later, the consent order was perfected and sealed. It was assigned the date of the proceedings before the registrar.

Before Mr Justice Singer the wife successfully contended that the order was a nullity because it carried a date antecedent to that of the decree nisi and could not be amended under the slip rule.

Peter Duckworth (Max Engel & Co, Northampton) for the husband; Ellen Solomons (Toller Hales & Collcutt, Wellingborough) for the wife.

LORD JUSTICE WAITE said that section 33A of the Matrimonial Causes Act 1973, as inserted by the Matrimonial and Family Proceedings Act 1984, and the rules and directions made under it confined the paternal function of the court when approving financial consent orders to a broad appraisal of the parties' financial circumstances.

The effect of section 23 or 24 of the 1973 Act was to deny jurisdiction to the court to make a consent order at any date before the pronouncement of decree nisi. The obtaining of a financial consent order involved a judicial exercise at the point where the registrar signified his approval of the draft order. If a decree had been pronounced, he could make the order there and then.

If the pronouncement of decree nisi was still pending, the registrar's judicial function would include choosing between two possible courses of action for giving effect to the approved draft order.

One course, followed in the great majority of cases, was to include a statement of his approval of the draft order on the face of the certificate which he was giving for the purposes of the decree. The draft order would automatically become a consent order of the court when the decree was pronounced.

The other course was to direct that the draft order should come into being as a substantive order at a date on or after the day on which a decree nisi was to be pronounced. Whichever course was selected, no further judicial function was required.

The registrar gave advance approval to the order on the footing that such approval would not become the subject of any order of the court until a date falling after the pronouncement of decree nisi. That was a perfectly valid method of enabling consent orders to be made after decree nisi with the benefit of an approval obtained before decree nisi.

There was neither the scope nor the necessity for any 'judicial' act or fresh appraisal, after decree nisi, of the merits of the proposed consent order. The approval it had received was a continuing one.

Therefore the consent order was validly made. 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 it ought to be amended under the slip rule by inserting the sealing date as its true date.