Wide ranging powers of Family Courts

The recent case of CH v WH [2017] has shone a light on the broad interpretation of the Family Court’s powers, which led to one commentator describing them as “incredibly wide-ranging”.

This case concerned the approval of a final draft consent order in financial proceedings which had already been rejected twice by judges in the Family Court. The order was initially rejected on the grounds that there were provisions in there that were outside the court’s power.

These provisions related to the parties using their best endeavours to procure the release of the other party from a mortgage and indemnifying the other against any liabilities. The original district judge saw this provision as more akin to an undertaking and did not believe there was power in the Matrimonial Causes Act 1973 to order that. The issue was then brought before Mostyn J.

Mostyn J was unequivocal in his judgment, noting that he was “perfectly satisfied that the objectionable terms are fully within the power of the court to order”.

Mostyn J went on to criticise the judges who had previously dealt with the case for making the basic mistake that their powers were confined to the Matrimonial Causes Act 1973. Mostyn J noted that this “caused needless delay and have no doubt increased costs and caused other inconvenience”.

This judgment goes to show how wide-ranging the Family Courts powers can potentially be. This was exemplified when Mostyn J made the point that the Family Court has all the powers of the High Court.  This comparison with the High Court is likely to be something lawyers will use in the future in their arguments for orders to be granted.

This unintended consequence could lead to an increased number of appeals if lawyers try their hand across other court divisions.