Anna Roiser discusses Baker v Baker and its potential impact on separation agreements in the Financial Remedies Journal

Anna’s article was published in the Financial Remedies Journal, 20 May 2024, and can be seen here.

Anna Roiser, Senior Knowledge Partner in our Family & Relationships department, examines the implications of the case Baker v Baker [2023] EWFC 136

Although Mr Justice Mostyn described the case as raising “no real issues of law,” Anna argues that his judgment could significantly influence how separation agreements are treated in future. Mostyn J proposed that such agreements should be approached similarly to consent orders, meaning their capital terms should not be varied unless there are grounds to set them aside potentially marking a shift from the established precedent in Edgar v Edgar [1980].

Anna explores the traditional approach under Edgar, where courts assess the fairness of a separation agreement by considering factors such as undue pressure, inequality of bargaining power, or lack of legal advice. She contrasts this with Mostyn J’s reliance on MacLeod and the Maintenance Agreements Act 1957, which could lead to a more rigid and formalistic treatment of these agreements. This change might reduce the court’s flexibility to intervene where an agreement, though technically valid, may not be substantively fair.

While acknowledging the potential benefits of consistency and predictability, Anna expresses concern that this approach may not always lead to just outcomes. She suggests that a more balanced method would involve assessing whether the agreement would have been approved as a consent order at the time it was made. Her analysis underscores the ongoing tension in family law between legal certainty and fairness, and the importance of nuanced judicial discretion in resolving financial disputes following relationship breakdowns.

Read the full article on the Financial Remedies Journal website [external website].