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‘Clumsy’ lawyers risk appeals after judge clarifies family court powers

By Mondipa Fouzder

A broad interpretation of the family court’s powers risks creating a surge in appeals if ‘clumsy’ lawyers delve into areas beyond their specialism, solicitors fear.

In CH v WH, Mr Justice Mostyn,approved a draft final consent order which had been twice refused by judges in the family court because they believed certain provisions were outside the court’s power to order and should be redrafted as undertakings.

The draft order provided for two jointly owned properties, which were mortgaged, to be transferred respectively to the wife and husband. Each party had to use their best endeavours to procure the release of the other party from the mortgage on the property they received and indemnify the other party against liability.

Mostyn said the ‘basic mistake’ made by the judges ‘is to assume that their powers are confined to the four corners of the Matrimonial Causes Act’. The family court ‘has all the powers of the High Court. The High Court unquestionably has the power, as part of its equitable jurisdiction, to order an indemnity,’ Mostyn said.

He added: ‘In my judgment, these sterile, technical objections to orders in these terms must cease. They have caused needless delay and have no doubt increased costs and caused other inconvenience.’

Solicitor Neil Russell, a partner at London firm Seddons, said the judgment clarifies whether the family court can direct parties to undertake to use their best endeavours or indemnify other parties, and whether such clauses must be given as undertakings or recitals.

However, Dickon Ceadel, an associate at London firm Forsters, questioned where the court’s ‘incredibly wide-ranging powers’ end. ‘One unintended consequence could be a marked increase in family lawyers asking the family court to make orders across other court divisions. This in turn could lead to an increase in appeals if family lawyers end up clumsily delving into areas which are outside their specialism,’ he warned.

(Courtesy: Law Society Gazette)