The trend is wreaking havoc in matrimonial financial settlements, not least because there is no consistent policy from judges when cases do get to court.
Some judges will insist that the original negotiated agreement stands. Others will alter it.
Negotiated agreements are a feature of the financial side of divorce. Compromises save unnecessary acrimony and costs. However, a recent Court of Appeal case highlights the problems when one party decides he or she is not happy with the terms of an agreed settlement.
Valerie and Michael Pounds were married in 1960. By 1988 their marriage had broken down. Mr Pounds was then 51 and Mrs Pounds was 46. They had three grown-up sons.
Mrs Pounds was living in the matrimonial home, which was worth about pounds 140,000, with a pounds 20,000 mortgage.
She worked as a mobile warden for sheltered accommodation. Mr Pound had been made redundant from his job, but had received a lump sum settlement and a pension. He got a new job as an administrator.
By the summer of 1990, divorce proceedings were under way, and Mrs Pounds put in her formal claim for financial support. A settlement was finally agreed in December 1990 for a clean break.
Mrs Pounds was to have the matrimonial home and give up her claims to everything else. The solicitors drew up a simple draft order, which confirmed Mr Pounds would pay off the mortgage and transfer his interest in the matrimonial home to Mrs Pounds, and that claims against each other for any further financial relief were to be dismissed. The judge approved, and initialled the draft consent order. A few days later, the divorce became final.
The draft order remained at the court until Mrs Pounds' solicitor chased it up. The court finalised it in exactly the same form as the draft. But due to a clerical error, the wrong date was put on it - 11 December 1990, seven days before the decree nisi.
As the months went by, Mrs Pounds grew increasingly unhappy about the agreement. She changed her solicitors. They spotted the wrong date on the consent order and wrote to Mr Pounds' solicitors.
The case went back to court. The judge set aside the agreement. He said that it was not a suitable case for a clean break. Mrs Pounds was to have maintenance of pounds 6,300 a year and the matrimonial home.
Mr Pounds appealed. Peter Duckworth, the barrister representing Mr Pounds, said: 'We argued that the order should not fall merely by reason of a clerical error in the court office. 'We also said that even if it was a nullity, the judge should have upheld the agreement, because both parties negotiated at arm's length with the benefit of independent legal advice.'
Mr Pounds won. There was a valid consent order and Mrs Pounds was back to the clean break and no maintenance.
Meanwhile, the Court of Appeal judges were concerned about the uncertainty about whether agreements should be enforced. One judge said the law was in an unsatisfactory state.
He commented: 'In our attempt to achieve finely ground justice by attributing weight but not too much weight to the agreement between the parties, we have created uncertainty and, in this case and no doubt others, added to the cost and pain of litigation.'
Mr Duckworth said there was an alarming trend of parties backing out of agreements. 'I have been instructed in about 12 such cases this year. How the judge sees it is a lottery. In my experience in the Northampton area, where one party reneges on an agreement it has about an 80 per cent chance of being upheld by the judge.'
David Eastwood, head of the family law department at Toller Hales & Collcutt, now acts for Mrs Pounds. He said: 'In view of the Court of Appeal's ruling we are still discussing the consequences of that decision with our client, and would prefer at this stage not to make any further comment.'
Last Saturday, the Independent featured another case where an ex-wife was unhappy with an agreement. Mrs R agreed at court and then in a subsequent court order that she would receive maintenance for a fixed period only. She then went back to court and got her maintenance extended.
She was able to do it because a few extra words had been omitted from the court order. There could be thousands of other couples with incorrectly drawn court orders.
Mrs R's present solicitor, David Woodward, the matrimonial partner at solicitors Trump & Co in Bristol, said: 'Mrs R had always expected to have maintenance for life. At the door of the court, maintenance for a limited period was agreed, but Mrs R did not agree that she was shut out if she needed a longer period.'Reuse content