Section 35: Dead Letter or Living Instrument? The Contractual Status of Agreements, and the Scope of the Court’s Power to Vary Them

This article reviews the legal status of agreements made between spouses, including their enforceability as actionable contracts, and the importance of the powers the courts have to vary or revoke such agreements.[[1]]

Financial remedies practitioners are very familiar with Part II Matrimonial Causes Act 1973. Inevitably, some parts of the statute are more familiar than others. Sections 23, 24, 25, 25A, 31 and 37 are so well known that they are often applied without the need to be looked up or specifically cited, as are ss 22ZA and 22ZB. There are highly technical provisions, such as those dealing with pensions at ss 21A, 24B, 24C, 24D, 25B, 25C or 25D, which are used daily without a second thought.

Then there are those provisions which practitioners are conscious exist, but which are not routinely referred to or used. The power to refer the drafting of documents by conveyancing counsel (s 30), the bar on enforcement of arrears of maintenance or periodical payments older than 12 months without leave of the court (s 32), or the court’s power to make an order by consent (s 33A) come to mind.

But then there are the provisions which have been long overlooked and are now largely forgotten. In particular are those which deal with the validity and variation of ‘maintenance agreements’ (ss 34–36). Many practitioners will share the view expressed by Wilson LJ (as he then was) in the Court of Appeal in the case of Radmacher v Granatino [2009] EWCA Civ 649 that ‘Sections 34 and 35 have been dead letters for more than thirty years’ (at [134]).[[2]]

The recent decision of Richard Todd KC sitting as a Deputy High Court Judge in HA v EN [2025] EWHC 2436 (Fam) is a reminder that these sections remain within the statute and they remain relevant, potentially very potent, certainly useful, and in some cases they are potentially essential to ensure a fair outcome. As we shall see, in HA v EN the court held that s 35 could be used to vary a Xydhias agreement, reached effectively at the door of the court prior to the final hearing, when issues arose as to the conversion of that agreement into an order of the court. The decision in HA v EN also serves as a reminder that the question of the contractual status of agreements reached in a matrimonial or nuptial context remains unclear and unresolved.

In an age where nuptial agreements are now routinely made far more often than used to be the case, whether before marriage (pre-nuptial agreements), after marriage (post-nuptial agreements), as a consequence of separation (separation agreements), or in settlement of financial remedies proceedings brought upon separation (an Edgar[[3]] or a Xydhias[[4]] agreement), the status of such agreements as contracts or as maintenance agreements within the meaning of the MCA 1973 ought to bring these ‘very little used provisions’[[5]] back into the financial remedies practitioner’s consciousness.

In fact, rather than being ‘little used’, this article explains why it seems to be the case that the courts are routinely applying s 35 MCA 1973 to vary and revoke maintenance agreements in every case where the terms of an agreement are converted, in whole or in part, into a financial remedies order made by the court; albeit this is rarely expressly stated or recognised to be the case.

This article seeks to explore the true construction and effect of s 35 MCA 1973 and to examine the jurisdictional basis upon which courts are able to depart from the terms of a ‘binding’ agreement reached by parties upon or subsequent to their separation when the court comes to determine a financial remedies application brought by one of the parties. It also explores the important question of what ‘binding’ actually means in the context of such agreements.

The decision in HA v EN

The parties in HA v EN were involved in complex financial remedy proceedings. The background to those proceedings is not important for the purposes of this article, but can be found in Richard Todd KC’s earlier judgment determining the wife’s application for maintenance pending suit and a legal services payment order.[[6]] Although the financial remedy proceedings were listed to be heard before Richard Todd KC over the course of 9 days in April 2025, the day before the hearing was due to commence the parties’ negotiations had reached the stage where they both accepted that they had a Xydhias agreement. The court allowed them further time to continue the negotiations to complete a final consent order.

Although those negotiations were successful in agreeing the vast majority of the issues, some points remained in dispute. Although many of those points were largely technical points relating to the mechanics of how the parties’ agreement would be implemented and expressed in the order, there were also slight variations to the substantive terms of the agreement sought by the husband. He said those variations were necessary following his realisation that the wife’s legal fees, which it had been agreed would be discharged from the sale of the family home, were substantially higher than he had understood at the time the agreement was reached, and that was compounded by ‘the fear that both parties have that the property is going to sell for a good deal less than they hoped it will sell for when concluding their agreement’ (at [49]).

At [22]–[37] of his judgment Richard Todd KC explained the law arising from the case of Xydhias and the scope of the court’s jurisdiction when being asked to make an order to implement the terms of such an agreement. He began by explaining that:

‘the Xydhias jurisprudence exists to deal with where there are either small disputes as to the exact terms of an agreement reached or its implementation (and whether they should be sanctioned by the Court) and also whether an agreement has been reached at all. I mentioned “whether an agreement has been reached at all”, because if it were the case that I find the parties had not reached a level of accord which constitutes a Xydhias agreement but in the process I had seen some without prejudice correspondence, I would not be able to continue with this matter. The matter would have to be sent to another Judge who had not seen that material.’ (at [23])

Although not directly relevant to the dispute before him, because both parties were asking the court to make a financial remedies order pursuant to Part II MCA 1973 and neither party was seeking to enforce the Xydhias agreement as a contract, the judge noted that ‘the current orthodoxy surrounding Xydhias’ tended to follow the statement by Thorpe LJ in Xydhias v Xydhias [1999] 1 FLR 683 that:

‘My cardinal conclusion is that ordinary contractual principles do not determine the issues in this appeal. This is because of the fundamental distinction that an agreement for the compromise of an ancillary relief application does not give rise to a contract enforceable in law. The parties seeking to uphold a concluded agreement for the compromise of such an application cannot sue for specific performance. The way of rendering the bargain enforceable, whether to ensure that the applicant obtains the agreed transfers and payments or whether to protect the respondent from future claims, is to convert the concluded agreement into an order of the court.’ (at p 691)

As the issue in Xydhias was whether the parties had reached a binding compromise of their financial remedy claims which should be adopted as an order of the court, rather than whether there was an actionable contract between them, it would appear that Thorpe LJ’s statement that ‘an agreement for the compromise of an ancillary relief application does not give rise to a contract enforceable in law’ and that the parties ‘cannot sue for specific performance’ of such an agreement were obiter dicta. The same appears to be true of the following dicta made by Richard Todd KC given that neither party in HA v EN was asking the court to enforce their Xydhias agreement as a contract and, indeed, as neither party had yet breached the very freshly made contract they could not have done so.

In any event, Richard Todd KC noted that the correctness of Thorpe LJ’s comments about the contractual status of such an agreement was questioned by the Court of Appeal in the later decision in Soulsbury v Soulsbury [2007] EWCA Civ 969, [2008] Fam 1. In that case the court agreed that the claimant was entitled to sue for performance of an agreement she had reached with her former husband that she would receive £100,000 from his estate if she did not enforce an order for periodical payments in her favour or seek any other order for ancillary relief against him. In the course of their respective judgments in Soulsbury, both Longmore LJ and Ward LJ questioned the correctness of Thorpe LJ’s ‘cardinal conclusion’.

For the purposes of dealing with the specific issues as to the agreement in the proceedings before him, Richard Todd KC resolved the tension between the decisions in Xydhias and Soulsbury rather neatly:

‘The position seems to be this: in the lead up to the making of a financial remedy order, the parties are simply seeking to achieve an accord. That accord will not become binding until it has the approval of the Court. The Court will usually make it into an order. The parties’ accord is always going to be imperfect without the Court’s approval. The Court might refuse the bargain and having done so, neither party will have recourse against the other for breach of either of the two alleged unilateral contracts. There would be no contract as a condition precedent in all such negotiations (approval of the Court) would not have been met. Once the order has been made (and is effective – for example a final decree of divorce would be needed) the condition precedent has been met. There is an obligation created by the order of the Court. That usually supersedes any contractual obligation but I can see no good reason as to why after that point the parties are not also contractually bound. Mr Soulsbury was thus able to enter into a contract after the consent order on this basis.’ (at [37])

That analysis, insofar as it applies to a Xydhias agreement to compromise existing financial remedy proceedings, is compelling and appears to be correct. A Xydhias agreement is, by definition, reached in compromise of pending financial remedy proceedings. Accordingly, the parties reach their agreement on the clear understanding that it is to achieve a financial remedies order without the need for a contested final hearing, but it is also clearly understood that their agreement is always subject to the ultimate approval of the court. Such an agreement made in the compromise of a financial remedies application is not intended by them to be a free-standing contract or an agreement on which they would sue independently of the financial remedy proceedings. It is natural to infer an implied condition precedent (i.e. approval of the court) to all such agreements. If the court does not approve the agreement, it ceases to be of effect.

Richard Todd KC’s view that once the agreement is approved by the court and made into an order ‘there is an obligation created by the order of the Court’ is clearly correct and uncontroversial. However, his further comments that the order ‘usually supersedes any contractual obligation’ and that ‘I can see no good reason why after that point the parties are not also contractually bound’, although obiter dicta given the issues before him in HA v EN, are somewhat more difficult and raise further questions. Is the agreement a contract? What about other forms of nuptial contract or maintenance agreements between spouses, or agreements outside the Xydhias context? Why and how does the court’s order supersede the contractual obligation? What are the implications if the parties are also contractually bound by their agreement as well as by the terms of the order when it comes to enforcement or future variation, or in the event of an inconsistency between the terms of the order and the agreement? Those questions did not need to be answered for the purposes of resolving the issues in HA v EN, but they are important and this article goes on to consider some of them.

The husband in HA v EN made a further argument that even if the Xydhias agreement was ‘binding’ in the sense that there was no good reason allowing him to resile from it, the court can and should vary its terms before making its final order. He relied on the ‘very little used provisions which are found within the 1973 Act in sections 34 and 35’ (at [44]). The court agreed that the Xydhias agreement fell within the definition of a maintenance agreement in s 34 MCA 1973 and therefore the court had the power to vary the agreement.

The court found that:

‘there are two matters which represent the changes of circumstances which are advertised in section 35(2)(a) as being valid bases for there to be a variation in a maintenance agreement. The first is, whether rightly or wrongly, the liability which is going to incurred by those additional items, including the properly incurred legal costs is higher than EN expected it to be. The second much more substantial point is the fear that both parties have that the property is going to sell for a good deal less than they hoped it will sell for when concluding their agreement.’ (at [49])

The court proceeded to insert terms into the final order which were a slight variation to the terms of the parties’ Xydhias agreement (at [55], [57], [58] and [60]).

Although it is entirely correct to describe ss 34 and 35 MCA 1973 as ‘very little used’ in the sense that they are exceptionally rarely cited or expressly relied on by family lawyers or by family judges, as this article will go on to explain, they are implicitly used by the courts more often than anyone realises. Furthermore, if the view expressed in HA v EN that an agreement of this nature made between husband and wife in the matrimonial context is contractually binding on them is correct (and it is submitted that it is correct, as explained below), the importance of the power to vary such agreements pursuant to s 35 assumes greater importance than has hitherto been realised.

What do ss 34 and 35 say?

Section 34(1) MCA 1973 states that:

‘If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements, then—

(a) that provision shall be void; but

(b) any other financial arrangements contained in the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason (and subject to sections 35 and 36 below), be binding on the parties to the agreement.’ (emphasis added)

The emboldened words are important, and their effect will be something we look at shortly.

As for what a ‘maintenance agreement’ is, we find that defined in s 34(2):

‘“maintenance agreement” means any agreement in writing made, whether before or after the commencement of this Act, between the parties to a marriage, being—

(a) an agreement containing financial arrangements, whether made during the continuance or after the dissolution or annulment of the marriage; or

(b) a separation agreement which contains no financial arrangements in a case where no other agreement in writing between the same parties contains such arrangements.’

The Act then goes on to explain that ‘financial arrangements’ means:

‘provisions governing the rights and liabilities towards one another when living separately of the parties to a marriage (including a marriage which has been dissolved or annulled) in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect to the maintenance or education of any child, whether or not a child of the family.’

This definition of ‘financial arrangements’ is clearly very broad and captures far more than ‘maintenance’ as it might be simply understood as limited to ongoing provision in the form of periodical payments. The references to ‘rights and liabilities’ and to ‘the disposition or use of any property’ are sufficiently wide to capture most if not all forms of financial relief or property adjustment which is available within Part II MCA 1973 upon the termination of a marriage.[[7]]

So we can see from the words of s 34 that the parties can make a ‘maintenance agreement’ dealing with some or all ‘financial arrangements’ between them when they are living separately, and those arrangements may apply during a marriage or after it has been dissolved or annulled, and that agreement will be ‘binding’ on them.

The wording of s 34 is sufficiently broad as to capture most forms of formal agreement which parties are likely to make dealing with their matrimonial financial provision including separation agreements and agreements compromising their financial remedy claims (in the Edgar v Edgar and Xydhias v Xydhias sense). The words of s 34(2)(b) even include within the definition of a maintenance agreement a separation agreement which is limited to recording the parties’ agreement to live separately but without containing any financial arrangements or obligations within it.

Whether a pre-nuptial or post-nuptial agreement is a maintenance agreement or not is a somewhat more nuanced issue. Such agreements are drafted not in anticipation of or in consequence of an actual separation, but in anticipation of a hypothetical separation in the event the marriage breaks down at some point in the future. Although such an agreement may be drafted so as to create contractually binding obligations and rights (as was found to be the case in respect of the post-nuptial agreement in MacLeod v MacLeod [2008] UKPC 64, [2010] 1 AC 298, see [31] and [36]–[40]), it may be that a true construction of the terms of the agreement are limited to an agreement that the parties will ask the Family Court to make provision by way of financial remedies order, rather than creating actionable contractual rights which can be independently sued upon. Those drafting such agreements need to have this distinction in mind and ensure they are clear as to the rights and obligations the agreement is intended to create.

However, there is a further complication in the context of pre-nuptial agreements. An agreement made before the marriage is entered into does not fall within the definition of a maintenance agreement because s 34(2) refers only to agreements made during the marriage or after its dissolution or annulment. It does not include any agreement made before the parties married. The conventional drafting of many pre-nuptial agreements includes a provision that the agreement will come into force or become effective upon the marriage of the parties. While this may amount to a condition precedent for the effectiveness of an agreement made before the marriage, it may also be construed as a provision declaring that the agreement is only effectively ‘made’ upon the marriage being entered into, thereby bringing it within the meaning of a maintenance agreement. With that said, the omission from s 34 of an agreement made before the marriage is likely to have been deliberate on Parliament’s part because at the time the provisions which are now s 34 MCA 1973 were enacted, pre-nuptial agreements were regarded as contrary to public policy and wholly enforceable, and that changed only with the decision of the Supreme Court in Radmacher v Granatino [2010] UKSC 42, [2011] AC 534. The omission of a pre-nuptial agreement from the definition of maintenance agreement means that the powers to vary maintenance agreements pursuant to ss 35 and 36 are not available in the context of a pre-nuptial agreement. Later in this article, consideration is given to alternative means by which such an agreement may be varied or revoked, to the extent that it is a binding contract capable of independent enforcement.

Section 35[[8]] goes on to deal with ‘Alteration of agreements by court during lives of parties’, stating at s 35(1) that:

‘Where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in England and Wales, then either party may apply to the court for an order under this section.’

The court’s power to vary a maintenance agreement can only be exercised if there has been a change in the circumstances since it was made. In order to vary a maintenance agreement under s 35(1) the court must be satisfied:

‘(a) that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different, or, as the case may be, so as to contain, financial arrangements,[[9]] or

(b) that the agreement does not contain proper financial arrangements with respect to any child of the family,’

If the court is so satisfied then, subject to s 35(4) and (5):[[10]]

‘the court may by order make such alterations in the agreement—

(i) by varying or revoking any financial arrangements contained in it, or

(ii) by inserting in it financial arrangements for the benefit of one of the parties to the agreement or of a child of the family,

as may appear to the court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in section 25(4) above; and the agreement shall have effect thereafter as if any alteration made by the order had been made by agreement between the parties and for valuable consideration.’

This provision plainly envisages an application being made to the court purely to vary the agreement, including by adding provisions supplementary to those contained in the agreement, independently of and without the need for any application for orders in connection to a divorce pursuant to s 23 (financial provision) or s 24 (property adjustment). Note that this permits the court to make extensive financial provision by way of variation of the maintenance agreement even where there are no divorce proceedings ongoing or capable of being brought in England and Wales. However, modern practice is virtually always to seek final financial remedy orders within divorce proceedings, or by way of an application pursuant to Part III Matrimonial and Family Proceedings Act 1984 after a foreign divorce, rather than to seek an order varying the maintenance agreement. The fact that a freestanding application to vary a maintenance agreement is virtually unheard of in modern practice caused Wilson LJ to refer to ss 34 and 35 as ‘dead letters’. However, as will be explained, that is to take a very restricted view of the effect of ss 34 and 35 which overlooks the effect those sections continue to have whenever an application for financial provision is made in circumstances where an agreement between the parties exists and reliance is placed on that agreement by one or both parties.

Lastly, s 35(6) states that:

‘For the avoidance of doubt it is hereby declared that nothing in this section or in section 34 above affects any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment (including a provision of this Act) to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.’

This makes clear that the existence of a maintenance agreement does not prevent the court making orders ancillary to divorce pursuant to ss 23 and 24 (and the related provisions dealing with pension sharing). What s 35(6) does not tell us is neither: (1) what the status of a maintenance agreement should be in those proceedings; nor (2) what the effect of the court making such orders has on the maintenance agreement which, as we know from s 34(1), is ‘binding on the parties to the agreement’.

True construction of ss 34–35

To understand the interaction of ss 34–36 MCA 1973 with financial remedies order made pursuant to ss 23–25 MCA 1973 requires some careful statutory construction. On first reading, the entirety of s 35 appears to deal with a free-standing power to vary maintenance agreements. It is submitted that is not the correct way to interpret the provision. When enacting s 35 as a whole, Parliament was actually dealing with two different sets of powers the court has to vary, revoke or supersede a maintenance agreement.

First, there is the free-standing power to vary a maintenance agreement independently of any divorce or nullity proceedings being initiated or any financial orders being sought in such proceedings. This power is set out in s 35(1)–(5). Notably, this power is available only when both parties are either domiciled or resident in England and Wales. It is therefore subject to a significantly stricter and narrower jurisdictional threshold than that which applies to a party initiating divorce proceedings. For example, a party relying on the habitual residence or domicile of only one party to the marriage to bring divorce proceedings in England and Wales would not be able to make a free-standing application to vary a maintenance agreement pursuant to s 35(1) where the other party is not domiciled or resident in England and Wales.

The second element of s 35 is the recognition of the power given to the court to make a financial remedies order in divorce, nullity or judicial separation proceedings notwithstanding the existence of the maintenance agreement, contained in s 35(6). This is clearly independent of the preceding freestanding power to alter the agreement. Obviously, the jurisdiction to make such orders would depend on the parties meeting the jurisdictional threshold for bringing divorce, nullity or judicial separation proceedings in England and Wales. In cases where both parties are not domiciled or resident in England only this route will be available as a means of obtaining orders in terms which differ from the terms of the maintenance agreement.

Reading ss 34 and 35 together in the light of this raises some important further questions:

(1) What does ‘binding’ actually mean in this context?

(2) What ‘enforcement’ options does a party to a maintenance agreement have in the event of a breach of an agreement, and how are they to be exercised?

(3) What are the implications of s 35(6) in the event a party seeks financial remedies upon divorce rather than taking contractual action on the agreement? In particular, what status does the maintenance agreement have once the court has made orders which either reflect or differ from its terms?

What does ‘binding’ in s 34(1) mean?

As English law recognises spouses as independent legal personalities, there is nothing to prevent a husband and wife making binding contracts with each other.[[11]] Although some routine domestic arrangements between spouses may be presumed to lack the intention of the parties to be contractually bound,[[12]] the types of nuptial agreements which this article is concerned with would normally be regarded as quite obviously being intended to create legal relations between them.

But is a maintenance agreement a special form of agreement which differs from any other contract? It is submitted that it is not, and in enacting s 34, Parliament understood and intended that a maintenance agreement is ‘binding’ in the contractual sense.[[13]]

While it might be suggested that ‘binding’ in s 34 refers to an agreement being binding in the context of an application for financial remedies, that appears to be an incorrect reading for four main reasons of elementary statutory construction:

• First, the parties cannot bind or oust the court’s discretionary powers to make orders under Part II MCA 1973.[[14]] This rule is specifically enshrined in statute by s 34(1)(a), which renders any provision purporting ‘to restrict any right to apply to a court for an order containing financial arrangements’ void. The effect of this rule is that nothing agreed by the parties can restrict the court’s power to make financial remedy orders as it sees fit. Anything which purports to restrict the court’s discretionary powers to make such orders is void and unenforceable. This strongly indicates that when Parliament used the word ‘binding’ it was not referring to ‘binding’ in the context of an application to the court for financial remedies, because there can be no binding agreement in that sense: the court’s discretion remains despite the agreement. It must have meant ‘binding’ in the contractual sense.
• Second, s 34(1) goes on to state clearly that ‘any other financial arrangements contained in the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason (and subject to sections 35 and 36 below), be binding on the parties to the agreement’. How could a maintenance agreement be ‘enforceable’, as s 34 is clear that it is, unless it means enforceable as a contract? There is no separate power given to the court to deal with the enforcement of maintenance agreements contained within the MCA 1973 or in any other matrimonial statute. The only way to enforce the agreement would be to sue for its breach by way of a contractual action. To seek back-dated financial remedy orders from the Family Court in the same terms as the agreement in the event of a breach of its terms cannot be regarded as ‘enforcement’ of the agreement without stretching language well beyond its normal meaning. Furthermore, s 34(1) and s 35(6) are clear that the court’s power to make financial provision orders is something which is wholly independent of any maintenance agreement, and that jurisdiction which is separate from any contractual jurisdiction cannot be ousted by any agreement.
• Third, s 35(2) states that after the court exercises its power to vary or revoke the terms of a maintenance agreement ‘the agreement shall have effect thereafter as if any alteration made by the order had been made by agreement between the parties and for valuable consideration’. The concept of ‘valuable consideration’ is important for the purposes of contract law (see below) but it is not a requirement for an agreement to be taken into account by a Family Court when determining a financial remedies claim in either the Edgar v Edgar, Xydhias v Xydhias or Radmacher v Granatino sense. The reference here to ‘valuable consideration’ points conclusively to Parliament intending ‘binding’ to mean that the agreement is contractually binding.
• Fourth, it is difficult to see why Parliament provided for the court to have jurisdiction to vary a maintenance agreement during the lives of the parties to it (s 35) or after the death of one of them (s 36) unless the agreement was capable of being sued upon by one of the parties to it. The fact that s 36 was enacted to permit the court to vary a maintenance agreement after the death of one party strongly suggests that Parliament understood that a maintenance agreement established contractual rights and obligations which could benefit or burden the estate of a party to the marriage after death, necessitating scope for the court to vary the agreement. If the agreement was binding only for the purposes of an application to the court for financial provision there would be no need for s 36 at all, given that any unadjudicated financial remedy claims abate with the death of a party to the marriage.[[15]] It is only if the agreement were capable of enforcement as a contract that there would need to be provision to vary its terms after the death of a party to it.

It is established and clear that in the event of a party to a maintenance agreement applying to the Family Court for divorce and consequent financial remedies orders the maintenance agreement is not ‘binding’ in anything like the contractual sense. It will form part of all the circumstances of the case and/or conduct, to be given such weight amongst all the other s 25 factors as the court deems fair (applying Edgar v Edgar, Xydhias v Xydhias and Radmacher v Granatino).

There is substantial judicial support for the proposition that a maintenance agreement between spouses can be contractually binding. In his judgment in Hyman v Hyman [1929] AC 601 Lord Atkin set out ‘the chequered career at law’ of separation agreements but explained that it had become established that ‘full effect has therefore to be given in all Courts to these contracts as to all other contracts’ and ‘agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any commercial agreement, of whose nature indeed they sometimes partake’ (at pp 625–6). In Bennett v Bennett [1952] 1 KB 249 Denning LJ was clear that a party to a separation agreement ‘can sue by action at law’ on the agreement (at p 261). Although there is no definitive judicial confirmation in the post-1973 era that a maintenance agreement can be actioned or enforced as a contract in a civil action, there is considerable obiter comment at a lofty judicial level to that effect though, for example, Lord Diplock in De Lasala v De Lasala [1980] AC 547 at 560E: ‘in the event of default, a maintenance agreement is enforceable by action’; and in the majority judgment in Radmacher v Granatino: ‘If parties who have made such an agreement, whether ante-nuptial or post-nuptial, then decide to live apart, we can see no reason why they should not be entitled to enforce their agreement’ (at [52]).[[16]] The Court of Appeal Soulsbury v Soulsbury (discussed above) held that a former wife was entitled to sue for performance of an agreement she had reached with her former husband that she would receive £100,000 from his estate if she did not enforce an order for periodical payments in her favour or seek any other order for ancillary relief against him.

There is an example of a former wife suing her former husband in the Chancery Division for damages for breach of an Ukrainian separation agreement.[[17]] It should be noted that the defendant in that case did not plead a defence based on the agreement not being an enforceable contract and therefore the issue did not fall to be determined by the court directly, so it is difficult to argue that the case decided the issue conclusively.[[18]]

In almost all cases parties to a maintenance agreement utilise that agreement as the basis of seeking orders for financial remedies from the court within divorce proceedings or Part III proceedings. But if such an agreement is also an actionable contract, there is nothing to prevent either party bringing an action on the contract for damages or specific performance in the event of a breach of its terms. Indeed, there may be cases where a party feels that an action on the contract may result in a better outcome than would be achieved by way of an application for financial remedies.[[19]] Likewise, there may be jurisdictional reasons for suing on the agreement rather than applying for financial remedies. For example, there may be no jurisdictional basis for applying for divorce or a Part III order in England, but a jurisdiction clause within the agreement or other relevant factors may provide the basis for making a contractual claim in England based on the agreement.

If, as indicated by the above, a maintenance agreement is an actionable contract, what might the approach be if a party to a maintenance agreement opts to sue on the agreement as a contract, and seek damages accordingly, rather than pursue a claim for financial remedies through the Family Court?

The need for consideration

For a promise in an agreement to be actionable as a contract there must normally be consideration for the promise moving from the promisee in return for the promise by the promisor. A compendious agreement which determines all the parties’ mutual obligations to each other is likely to have consideration moving in both directions and it will therefore be an enforceable contract. However, if the agreement is a one-sided promise to do something with nothing being offered by the promisee in return, the agreement is not usually actionable in the contractual sense.[[20]]

It has been held that a party who is the promissee to such a one-sided contract cannot show that consideration for the promise was a forbearance to bring a claim for financial provision before the court because any clause which purports to restrict an application for financial remedies being made to the court is void and therefore of no value.[[21]] The same authority (Bennett v Bennett) states that even if the agreement was expressed in a deed (which would normally make it a binding contract even without any consideration passing), consideration will be required for the maintenance agreement to be binding.

Whether Bennett remains good law is now highly doubtful. It is probably no longer good law, having been criticised by the report of the Royal Commission on Marriage and Divorce 1956[[22]] and then the enactment in 1957 of the provision which is now s 34(1).[[23]] It is likely that when Parliament enacted in the Maintenance Agreements Act 1957 the provisions which are now codified at ss 34–36 MCA 1973 (especially the reference to such an agreement being ‘binding’ notwithstanding a term ousting the jurisdiction of the court being void in what is now s 34(1)(b)), it did so specifically to reverse the effect of the decision in Bennett.[[24]] The effect of s 34(1)(b) appears to be to make a maintenance agreement a special form of contract which is binding notwithstanding the absence of consideration.

What happens to a maintenance agreement once the court makes a financial remedies order?

Contractual actions on a maintenance agreement are exceptionally rare. The reason for this may be a general belief that such agreements are not valid contracts which can be sued upon. For the reasons explained above, if that belief is held it is erroneous. Another reason for not suing on such agreements as contracts is presumably because in the vast majority of cases where an action could be brought on a maintenance agreement, there is also scope for either party to apply to the court to vary the terms of the agreement or to make financial remedy orders either in the same terms or in other terms. In effect, therefore, any action on the agreement is likely to be undermined by the Family Court making an order which either implements the agreement or which effectively varies the agreement. Indeed, there are likely to be criticisms and cost penalties applied to a party who seeks to litigate in the civil court without good reason when the issues relate to matters of financial provision which are more appropriately and conclusively to be resolved in financial remedy proceedings in the Family Court.

However, as noted earlier, in HA v EN the view was expressed that although an order of the court ‘usually supersedes any contractual obligation but I can see no good reason as to why after that point the parties are not also contractually bound’. This suggests that the making of a financial remedies order by the court does not replace the contract, but supplements it, leaving the contract in place and capable of being enforced separately from the order by way of a contractual action. If that is what HA v EN suggests is the legal position it is potentially highly problematic.

Say, for example, that the parties made a separation agreement which included a term that the husband would make periodical payments to the wife on a joint lives basis but, for good reason, when the court came to make a financial remedies order it took the view that a shorter fixed term for the periodical payments should be set. Would the wife be entitled to sue on the contractually binding separation agreement for provision which extended beyond the term for periodical payments set by the court? It is submitted that she would not. The correct analysis is that the court’s financial remedies order supersedes the separation agreement and brings it to an end. But how does this come about?

As explained above, s 35 indicates that there are two different routes by which a maintenance agreement may be varied by the Family Court:

(1) where there are no divorce proceedings and a free-standing application is made by a party to alter the terms of the agreement (s 35(1)–(5)); or

(2) where a party to the marriage makes a claim for financial remedies ancillary to divorce, nullity or judicial separation pursuant to Part II MCA 1973 (or some other provision, e.g. Part III Matrimonial and Family Proceedings Act 1973 or Sch 1 CA 1989).

A free-standing alteration of the agreement pursuant to s 35(1)–(4) is, as already noted, very rarely used. It could, in theory, be used in the event one party brought a civil action for breach of the agreement, which could be met by the respondent party applying to the Family Court for a variation of the agreement (which might include a complete revocation of it). In fact, this may be the only route which can be taken where, for example, the relevant party is unable to bring a claim for financial remedies in England either on jurisdictional grounds or because they have remarried before making any application for financial remedies. However, a free-standing application will not be possible where the parties are not both resident or domiciled in England.

In most cases the provision which applies is s 35(6):

‘For the avoidance of doubt it is hereby declared that nothing in this section or in section 34 above affects any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment (including a provision of this Act) to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.’

What is the effect of this? Does it mean that the court may make whatever orders it sees fit but having done so the maintenance agreement remains effective as an enforceable contract (unless it has been altered pursuant to s 35(1)) so that either party can sue on the agreement if its terms are more favourable than the order of the court?[[25]] Or does it mean that the agreement remains ‘binding’ only until the court makes its financial remedy order which then replaces the agreement for all purposes?

It is submitted that the second answer is the correct one, and that is the approach which the family courts have been taking to maintenance agreements in the context of ancillary relief proceedings at least since Edgar v Edgar in 1980. Since the introduction of the wide powers to make orders for financial provision and property adjustment orders in 1970, the practice is now not to rely on the maintenance agreement and apply to vary it, but to replace it completely by a financial remedies order ancillary to divorce. The effect of the court making the order is to revoke the maintenance agreement, even if this is not usually expressly recognised.

With one reported exception,[[26]] in all the numerous cases involving a maintenance agreement which have followed Edgar v Edgar, the court has not concerned itself with the need to explicitly alter the maintenance agreement pursuant to s 35(1) before applying its power to make financial remedies orders under s 23 or s 24 MCA 1973. In all those cases the agreement was simply subsumed by the court’s orders and it was assumed by all concerned that it no longer had any independent status or effect after the court made its order.[[27]]

That the court when making a financial remedies order is varying the maintenance agreement by revoking it is also implicit in Baroness Hale’s judgment in MacLeod v MacLeod [2008] UKPC 64 at [41] where she explained that Parliament had laid out two routes to dealing with an agreement: (1) variation without dissolving the marriage; or (2) financial orders upon dissolution of the marriage:

‘The question remains of the weight to be given to such an agreement if an application is made to the court for ancillary relief. In Edgar v Edgar [1980] 1 WLR 1410, the solution might have been more obvious if mention had been made of the statutory provisions relating to the validity and variation of maintenance agreements. One would expect these to be the starting point. Parliament had laid down the circumstances in which a valid and binding agreement relating to arrangements for the couple’s property and finances, not only while the marriage still existed but also after it had been dissolved or annulled, could be varied by the court. At the same time, Parliament had preserved the parties’ rights to go to court for an order containing financial arrangements. It would be odd if Parliament had intended the approach to such agreements in an ancillary relief claim to be different from, and less generous than, the approach to a variation application. The same principles should be the starting point in both.’

The above passage demonstrates a recognition that, although they have not expressly said so, the courts have for many years used s 35(6) as conferring, separate from and in addition to the power to alter an agreement pursuant to s 35(1)–(5), the power to revoke such an agreement by the making of a financial remedies order of the court in its place.

Indeed, that is the only way to explain the jurisdictional difficulty which arises in a case where the parties are not both resident or domiciled in England and so the power to vary a maintenance agreement pursuant to s 35(1) is unavailable to the court. It cannot be correct that where a party has neither English residence nor domicile but he or she is able to bring divorce proceedings or Part III proceedings in England based on the other party’s residence/domicile, the court’s powers to make orders which alter the terms of a maintenance agreement are more restricted than would be the case if both parties were each domiciled or resident in England and the power of variation pursuant to s 35(1) were available to the court.

Furthermore, included within the ‘power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment (including a provision of this Act) to make an order containing financial arrangements’ which s 35(6) preserves are the powers contained in s 24(1)(c) and (d) for the court to make:

‘(c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage ,other than one in the form of a pension arrangement (within the meaning of section 25D below);

(d) an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement other than one in the form of a pension arrangement (within the meaning of section 25D below).’

The power to vary a nuptial settlement has existed longer than almost all the other modern forms of financial relief which the courts may grant upon divorce.[[28]] The term ‘settlement’ in this context has been given a broad interpretation. It is a disposition ‘which makes some form of continuing provision for both or either of the parties to a marriage, with or without provision for their children’.[[29]] In Lort-Williams v Lort-Williams [1951] P 395 Denning LJ said that:

‘The word “settlement” in s. 25 of the Matrimonial Causes Act, 1950, is not used in the conveyancing sense: it includes any provision made by a husband for the future benefit of his wife if it proceeds on the footing of the then-existing marriage. It does not cease to be a settlement on her because the provision is not absolute but only contingent; nor does it cease to be a settlement on her because it may in its terms also be applicable for the benefit of a second wife by a subsequent marriage.’ (at p 403)

A separation deed has been held to be a post-nuptial settlement[[30]] and so has a settlement created by a wife upon her husband filing for divorce, notwithstanding the fact that, in doing so, it was her intention to try to protect assets from her husband’s claims.[[31]]

Although none of the modern cases on the variation of settlements have dealt with a nuptial or separation agreement, the body of case law which has developed indicates that the courts continue to show a willingness to include a variety of arrangements within the definition of a variable nuptial settlement.[[32]] It is highly likely that an agreement made between a husband and wife to regulate their financial affairs during the marriage or after the breakdown would be considered, at least in part,[[33]] to be a nuptial agreement which the court has the power to vary or ‘extinguish’, whether such an agreement is also a ‘maintenance agreement’ capable of variation within the scope of s 35 or not. This is particularly helpful in the event that a pre-nuptial agreement is drafted in a such a way that it creates actionable contractual rights and obligations, given that an agreement made before the marriage appears not to fall within the definition of ‘maintenance agreement’ within s 34 (see above).

Thus, the court has the power to vary, including ‘revoking’ (per s 35(2)) or ‘extinguishing’ (per s 24(1)(d)), a wide range of agreements which would otherwise be binding contracts. The courts have been doing this for years, albeit not explicitly acknowledging or stating that they are doing so. The Edgar v Edgar line of cases cannot be understood in any other way. If that is not the law then there is a serious risk of a party entering in into a separation agreement upon the breakdown of a marriage being left subject to an unjust and unfair obligation which cannot be terminated or altered without incurring exposure to a large damages claim. If, after a separation agreement has been made, one party to it leaves England and Wales or changes her/his domicile away from England and Wales, the parties could be stuck with a maintenance agreement which is fixed and can never be varied, even those terms which would otherwise be variable pursuant to s 31 if they were orders of the court rather than terms of an agreement.

It is unlikely that any family lawyer has been advising clients not to enter into separation agreements because of this risk of being stuck with a wholly non-variable agreement. It would be wholly undesirable if the law required them to do so.

Can a party have two bites of the cherry?

If, as argued above, a maintenance agreement is enforceable as a contract, any party to such an agreement has a choice of potential remedies: (1) sue on the agreement as a contract; or (2) seek financial remedies orders in the terms of the agreement. It is generally the case that any litigant who has more than one option for enforcing legal rights must elect which route he or she chooses to take and once the litigant has made that election they must stick with it. But what would happen in practice if a party sought to ride both horses in order to obtain the most favourable outcome of the two?

As discussed above, if a party issues a financial remedies claim in the Family Court the making of orders by the court will replace the maintenance agreement. Any attempt to sue on the agreement in the civil courts is likely to be met by the civil court staying the civil proceedings until the conclusion of the family proceedings, on the basis that it would be futile and a waste of resources to determine a civil claim based on a contract which the Family Court is likely to vary and revoke by the making of financial remedy proceedings. The same result is likely if one party issues a civil claim based on the contract and the other party thereafter issues financial remedy proceedings. The family proceedings are likely to become the dominant proceedings and subsume all the arguments within them.

Even if the analysis set out above (that the making of a financial remedies order revokes the underlying maintenance agreement) is incorrect and the maintenance agreement survives any financial remedies order, it is likely that the civil court would regard any fresh contractual claim brought by either party on the contract after the conclusion of the family proceedings to be an abuse of process. The family and the civil claims would all be against the same person and concerning the same subject matter: financial provision arising from their separation and divorce. The principle is that a party should not be twice vexed in the same matter.[[34]]

Conclusions

Agreements between married couples have become more and more important in financial remedies proceedings. Prior to the introduction of an easier route to divorce based on separation for a period of 2 or 5 years, combined with the creation of the broad redistributive powers now contained in Part II MCA 1973 by the enactment of the Matrimonial Proceedings and Property Act 1970, access to the Divorce Court and the orders it could make were more limited than they are today. At that time maintenance agreements were important in providing a means by which financial provision could be made between spouses following the breakdown of a marriage. With the reforms to the law of divorce and the introduction of the power to make wide-ranging financial provision and property adjustment orders in 1970, the purpose of agreements has changed, probably in ways which were wholly unforeseen when Parliament reformed the law of divorce so radically some 55 years ago.

Agreements have become more important a means of resolving matters after separation without the need for full-blown court proceedings (and the desirability of them being able to do so from a public policy point of view was recognised by Edgar v Edgar and Xydhias v Xydhias). More recently, since the decision in Radmacher v Granatino, agreements are routinely made before or after marriage to regulate the financial consequences of a breakdown of the marriage. Much of the reported case law from the High Court and from the Court of Appeal over the last 15 years has concerned the effect such agreements have on the outcome of a financial remedies application. The full contractual implications of such agreements remains a matter the courts have largely skirted around to date, save for a number of conflicting obiter dicta referred to earlier in this article. The contractual status of such agreement is something which practitioners have not fully explored or tested through litigation.

Yet despite the importance of agreements in the context of modern matrimonial law, the word ‘agreement’ does not feature in s 25 MCA 1973 at all.[[35]] It appears only in the routinely overlooked provisions dealing with maintenance agreements at ss 34–36. When those provisions were first enacted in their modern form in 1957 their practical application was very different to what it is today. Times have changed, and their practical application has evolved consequently, but they remain important and useful, as this article has sought to explain. They should not be overlooked.

[[1]]: This article is written with specific reference to maintenance agreements between married couples. Provisions in Civil Partnership Act 2004, Sch 5, paras 67–73, which largely mirror the relevant parts of the Matrimonial Causes Act 1973, apply to maintenance agreements between parties to a civil partnership, and much of what is stated in this article in relation to married couples will apply to civil partnerships.

[[2]]: The same paragraph in the judgment provides a pithy summary of the history of the provisions which are now ss 34 and 35.

[[3]]: Edgar v Edgar [1980] 1 WLR 1410.

[[4]]: Xydhias v Xydhias [1999] 2 All ER 386.

[[5]]: Per Richard Todd KC in HA v EN [2025] EWHC 2436 (Fam), [44].

[[6]]: HA v EN [2025] EWHC 48 (Fam), [18]–[35]. The legal services payment order made by the court was unusual in that the court dealt with a lack of liquidity in the resources to enable full liquid funds being made available to secure legal funding by making an order pursuant to Solicitors Act 1974, s 73 charging the fees of the lawyers acting for both parties against the family home which was on the market to be sold and backing that up with the grant of an equitable charge in favour of the lawyers over the ultimate award made by the court in favour of their respective clients (i.e. the equivalent of a Sears Tooth charge but imposed by the court rather than being a contractual arrangement between client and lawyers).

[[7]]: At the time the provision which now appears as MCA 1973, s 34 was enacted by the Matrimonial Causes Act 1957 the only forms of financial provision available upon divorce were the variation of a nuptial settlement and the payment of alimony or maintenance. Furthermore, the rules for divorce were restricted in that a ‘guilty’ party could not petition for divorce and therefore if the ‘innocent’ party did not petition for divorce the marriage would continue. Accordingly, when first enacted Parliament would have understood ‘financial arrangements’ contained within maintenance agreements as being provisions extending to the division or transfer of property which could be achieved by maintenance agreement but not by an ancillary relief order made by the court. However, by the time the section was codified into the MCA 1973, divorce on the basis of 2 years’ separation with consent or 5 years’ separation without consent had been introduced, and the court’s jurisdiction to make orders on divorce had expanded to include the making of lump sum payments and extensive powers to make property adjustment orders.

[[8]]: Section 36 deals with alteration of agreements by the court after the death of one party, which suggests that Parliament when enacting the MCA 1973 envisaged that a maintenance agreement established rights and obligations which could benefit or burden the estate of a party to the marriage after death, necessitating scope for the court to vary the agreement. This is a strong indication that Parliament regarded maintenance agreements to be contractually binding. How else would the agreement bind the estate of a party to it, given that financial remedy claims abate with the death of a party to the marriage (see Unger v Ul-Hasan [2023] UKSC 22)?

[[9]]: Note that this means that where the parties have entered into an agreement to live apart but made limited financial provision in it, or even no financial provision at all (such an agreement being a maintenance agreement as defined in s 34), the court may vary that agreement to include provisions in it which were not agreed.

[[10]]: Section 35(4) and s 35(5) place limits on the term of periodical payments within a maintenance agreement variation by the court which mirror the maximum terms applicable to periodical payment orders, so a party benefitting from ongoing payments pursuant to a maintenance agreement cannot be awarded provision by the court by way of a variation of the agreement which exceeds what would be possible in the event of periodical payments being ordered pursuant to s 23 upon divorce.

[[11]]: Pettitt v Pettitt [1970] AC 777, 798: ‘Today it is clear that a husband and wife can enter into a contract with each other and can sue each other on such a contract’.

[[12]]: See Balfour v Balfour [1919] 2 KB 571.

[[13]]: A cohabitation or separation agreement between cohabiting parties who are unmarried and not in a civil partnership which makes financial provision between them is also capable of being a contract. Unlike a contract between married parties, it is not complicated by there being any separate discretionary statutory regime for dealing with financial remedies upon the end of their relationship. Such agreements between cohabiting unmarried parties are outside the scope of this article, but it is important to note that if the agreement includes valid consideration for it or it is made by way of a formal deed and it is an enforceable contract, there is no power for the court to vary or alter their terms save as may be possible under the general law of contract or pursuant to equitable remedies such as undue influence. If, as the government has indicated it intends to do, some form of statutory financial relief is created for the benefit of unmarried cohabiting partners, it is to be hoped that it deals with the interaction between agreements between such parties and orders of the court in a somewhat clearer and comprehensible fashion than is the case with the current mixture of statute and case law dealing with agreements in the context of married couples.

[[14]]: As is clear from cases including Hyman v Hyman, Edgar v Edgar and Radmacher v Granatino.

[[15]]: Unger v Ul-Hasan [2023] UKSC 22, [2024] AC 497.

[[16]]: Albeit the Supreme Court went on to explain that whether post-nuptial or ante-nuptial agreements were contracts was irrelevant to the question of the weight any such agreement should be given in the context of financial remedy proceedings. Baroness Hale disagreed with the view of the majority on the binding contractual nature of ante-nuptial agreement, but agreed that it was, in any event, obiter in the context of the issues before the court in Radmacher – see [138] (1) and (2).

[[17]]: Yedina v Yedin [2017] EWHC 3319 (Ch).

[[18]]: In Merritt v Merritt [1970] 2 All ER 760 an agreement between husband and wife that he would transfer the house to her once she had paid off the mortgage on it was enforced as a contract. In Gould v Gould [1970] 1 QB 275 the fact that an enforceable contract could be made between a husband a wife for one to pay maintenance to the other, but in that case it was found their agreement was intended to create legal relations. In that case the agreement was entirely oral and informal. Had it been set out in a deed prepared by lawyers, however, it is difficult to see how the court could have said it was not intended by the parties to create legal relations between them.

[[19]]: For example, in Baker v Baker [2023] EWFC 136 the applicant wife sought financial remedy orders in England to implement the terms of a separation agreement made between her and the husband in New York some years before her application. Her claim included maintenance arrears under the agreement totalling £1,486,500. Had she sued on the agreement as a contract she would have been entitled to those arrears (subject only to any limitation periods which applied to her claim), but in the exercise of the court’s financial remedies discretion all the arrears were treated as remitted on the basis that s 32 provided a prima facie 12-month limitation period which Mostyn J took to be ‘a powerful steer for confining the enforcement of arrears of maintenance only to those sums which are close in time to the proceedings for enforcement’ (at [106]).

[[20]]: Combe v Combe [1951] 2 KB 215. The agreement might be enforceable by way of a form of estoppel in certain circumstances if there has been detrimental reliance by the promisee upon the promise notwithstanding there being no consideration mentioned in the contract itself.

[[21]]: See Bennett v Bennett [1952] 1 KB 249, but see the following paragraph above as to whether the effect of Bennett v Bennett and Combe v Combe has been wholly overruled by the Maintenance Agreements Act 1957 and with it the need for consideration for a maintenance agreement.

[[22]]: 1956, Cmnd 9678, paras 724–5.

[[23]]: Maintenance Agreements Act 1957.

[[24]]: This was the view of Baroness Hale when giving the unanimous decision of the Privy Council in MacLeod v MacLeod [2008] UKPC 64, [2010] AC 298, [21]–[24].

[[25]]: Indeed, as noted above, if both parties are not habitually resident or domiciled in England and Wales the power to vary a maintenance agreement pursuant to s 35(1) is not available to the court. So, to return to the example given earlier of the case of Baker v Baker [2023] EWFC 136, if the wife in that case had elected to sue on the New York separation agreement rather than applying to the Family Court for financial remedy orders, the husband would not have been able to apply to the court for an order varying the separation agreement pursuant to s 35(1) because the wife was neither resident nor domiciled in England. His only remedy would have been to himself apply for financial remedies in the English divorce and thereby utilise s 35(6) to effect a variation of the agreement by way of the court making financial remedy orders.

[[26]]: Simister v Simister (No 2) [1987] 1 FLR 194 was a first instance decision of Waite J which it is submitted is incorrect as a matter of law if it is authority for the proposition that a maintenance agreement cannot be varied other than pursuant to s 35(1).

[[27]]: There are relatively few reported cases where the paying party (rather than the receiving party) seeks an outcome which differs from the terms of a separation agreement, but in the two cases the author has found where the court did order less than the separation agreement required, the court did not feel any need to address any lingering liability under the agreement which could be enforced after the court made its order: Beach v Beach [1995] 2 FLR 160 (Thorpe J), SC v TC [2022] EWFC 67 (HHJ Hess). The implication is clear that the making of the financial remedies order had the implied effect of revoking the earlier agreement.

[[28]]: The power to vary ante-nuptial or post-nuptial settlements upon nullity or divorce appeared in Matrimonial Causes Act 1857, s 5. Only the power to order a husband to maintain his wife (but not the converse) has anything like a similar vintage. The power to make lump sum orders appeared for the first time in Matrimonial Causes Act 1963, s 5, property adjustment orders were first permitted by Matrimonial Proceedings and Property Act 1970, s 5, and the provisions allowing pension sharing orders came into effect only in 2000 following the reforms contained in the Welfare Reform and Pensions Act 1999.

[[29]]: Brooks v Brooks [1996] 1 AC 375.

[[30]]: Worsley v Worsley (1865–69) LR 1 P&D 648.

[[31]]: Melville v Melville [1930] P 159.

[[32]]: See, for example, Charalambous v Charalambous [2004] EWCA Civ 1030, N v N and F Trust [2005] EWHC 2908 (Fam), BJ v MJ (Financial Remedy: Overseas Trusts) [2011] EWHC 2708 (Fam), D v D and the I Trust [2011] 2 FLR 29, F v F [2012] EWHC 438 (Fam), DR v GR (Financial Remedy: Variation of Overseas Trust) [2013] EWHC 1196 (Fam), AB v CB (Financial Remedies: Variation of Trust) [2014] EWHC 2998 (Fam), NR v AB & Ors [2016] EWHC 277 (Fam), HRH Tessy Princess of Luxembourg v HRH Louis Prince of Luxembourg [2018] EWFC 77.

[[33]]: The question which remains unclear from the case law is whether to be a ‘settlement’ for this purpose the agreement must concern a specific item of property which is ‘settled’ (e.g. real estate, an investment fund, a company or an insurance policy) or whether it also applies to an agreement to pay a fixed sum or periodical payments to the other. It is likely that the answer is that there must be property which is within the settlement, given that in Brooks v Brooks Lord Nicholls made reference to ‘the court’s jurisdiction extends to all the property comprised in the settlement’ (at p 383).

[[34]]: The principle in Henderson v Henderson (1843) 3 Hare 100 as explained in Johnson v Gore-Wood & Co [2002] 2 AC 1, 31A–F.

[[35]]: But of course, neither do the terms ‘matrimonial property’, ‘non-matrimonial property’ or ‘sharing’, all of which have such an important place in most modern financial remedy cases.