Drafting without tears

District Judge Neil Hickman offers some tips on drafting Tomlin orders, and District Judge Susan Spencer outlines the way to make a consent ancillary relief order watertight

The ominous sight of the courtroom door looming has persuaded your opponents to settle.

How should you prepare the paperwork?

The basic Tomlin order should run along these lines: 'The parties having agreed to the terms of settlement set out in the schedule to this order.

It is ordered by consent that:

1.

All further proceedings in this claim are stayed except for the purpose of enforcing the agreed terms, for which purpose the parties have permission to apply.

2.

The money standing in court shall be paid out to the claimant forthwith.

All interest on that money up to the date of this order shall be paid out to the defendant's solicitors forthwith.

Any interest accruing on that money after the date of this order shall be paid to the claimant.

3.

The defendant shall pay the claimant's costs agreed in the sum of X/to be assessed in detail if not agreed/Public funding detailed assessment of the claimant's costs.'

Should the defendant default, the claimant can return to court under the 'permission to apply' for an order giving effect to the scheduled terms.

It does not matter that they go beyond the ambit of the original dispute and could not have been enforced in the original action - Phillips v Clarke [1970] Ch 422.

The parts of the order which require the court to act must be in the body of the order, not the schedule.

Do remember to deal with what is to happen to the interest on money in court.

If the court is to assess the costs, obviously the order to assess must be in the body of the order.

But note that the Civil Procedure Rules 1998 PD 40B paragraph 3.5 strictly requires a provision for payment of costs to be in the body of the order, too.

The parties can agree whatever terms they wish.

Noel v Becker [1971] 1 WLR 355 remains good law.

There, the Court of Appeal ruled that the terms represent an arrangement between the parties, and the judge is not concerned to approve them, although he may properly offer suggestions upon them if it appears to him that they may cause some difficulty.

The defendant will not have a judgment registered against him even though he may be agreeing to pay by instalments.

Nor will the payment carry interest under the Judgments Act 1838 - although of course the parties can agree that interest should be payable.

If the agreed terms are too vague the court will not enforce them - see Wilson & Whitworth v Express and Independent [1969] 1 WLR 197.

Necessary terms can be implied - Verbeeten v MacGregor-Read [1999] EWCA Civ 597 - but accurate drafting is better.

Do consider carefully what claims you are agreeing to settle; see the Jameson v CEGB saga which finished up in the House of Lords - [2000] 1 AC 455 - having cost a bomb.

Consent ancillary relief orders - the golden rule

The draft order must only include matters which the court has power to order under the Matrimonial Causes Act 1973 (MCA).

The parties' consent does not vest the court with powers not given under the Act.

Recitals

A recital should accurately reflect any agreement which the parties have reached and which the court cannot order (for example, the fate of the contents of the former matrimonial home) or which the court could order but which the parties have already put into effect (for example, the sale of the house and the division of the proceeds).

A recital can make and record the written maintenance agreement which allows the court to go on to make a child maintenance order.

Without a written agreement the court has no power to make such an order.

Undertakings

The usual undertaking is one to pay/discharge the mortgage on the former matrimonial home and to indemnify the other party against any liability.The indemnity aspect is frequently omitted, which proves on enquiry by the court to have been in error.

An undertaking to discharge debts should specify the debts, with amounts and account numbers.

These can be put in an attached schedule if there are many, and the schedule referred to in the undertaking.

This will help the parties in the event of any future dispute.

Substantive orders

The Solicitors Family Law Association precedents are a good starting point.It is the detail that calls for attention (for example, a policy, mortgage account or title number).

Insert dates or triggers for doing things (for example, completing a transfer or the termination of any periodical payments order).

The more acrimonious the separation, the more details need to be expressly covered.

In a periodical payments order for a child, if a termination date of other than the 17th birthday is agreed, it must be specified.

It is helpful to the parties later to specify that 'full time education' does (or does not) include a first degree.

Pension sharing

There is insufficient room in this article to do this justice.

A good summary of drafting points was contained in [2000] Gazette, 23 November, 44.

Dismissals

To achieve effective dismissal of MCA rights, there must first be a prayer in the petition/answer or an application in form A.

It might just suffice if the cost/fee is a problem to the client, that the proposed dismissal also 'deems' that all rights (fully detailed) to have been applied for.

The timing of the dismissal is important, for rights under both the MCA and the Inheritance (Provision for Family and Dependants) Act 1975.

Inheritance Act rights should not be dismissed until the date for termination of a spousal periodical payments order has passed.

MCA rights should not be dismissed until the time for completing (for example, a property transfer order) has passed.

If later it could cause doubt, spell it out.

Never underestimate the ability of the divorced to read what they want into any order, and then to argue about it.

District Judge Neil Hickman sits at Milton Keynes County Court and District Judge Susan Spencer sits at Leeds Combined Court