It always comes as a shock to separating couples to learn that even if they reach a financial agreement, a judge still has to approve it, and can block it if the judge does not consider the agreement to be fair.

The recent Court of Appeal decision in Bogolyubova v Bogolyubov and Privatbank [2023] EWCA Civ 547 was a stark reminder. Whilst the facts of the case were extreme (the husband was facing a separate case in the Chancery Division which would have wiped out his assets completely), the principles apply to every case.

Lady Justice King, in the Court of Appeal, summarised the law. Here are some useful excerpts:

• The starting point, for the court, is section 33A Matrimonial Causes Act 1973 which states ‘…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’
• In considering whether to approve an agreement, the court undertakes an inquisitorial jurisdiction. It will scrutinise the parties’ statement of financial information (D81), with the list of factors from section 25 of the Matrimonial Causes Act 1973 at the forefront of its judicial mind.
• The court is not ‘a rubber stamp’.

At The Divorce Surgery we regularly help couples who have an outline agreement but want to understand (a) whether a family judge will approve it and (b) whether there are any considerations they may have missed, to give them crucial reassurance before they make a formal application to convert that agreement into a binding court order.

You can read the full judgment here (login required).

Author Name: Editor

Published content by The Divorce Surgery Editorial Team.

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