There is no doubt that the suitable use of an abbreviated procedure to determine the status of an alleged agreement is an extremely useful case management tool available to the courts, provided it is fair and appropriate to short circuit financial remedy proceedings in this way. This is essentially the broad proposition re-affirmed by the High Court in FN v AC [2019] EWHC 3806, subject to the qualification that every case is dependent on its' particular facts.

FN v AC concerned the husband's appeal from a case management order made within the context of financial remedy proceedings in which the husband sought to enforce a compromise agreement reached with the wife. The issue on appeal was whether the judge at first instance had been wrong to deny the husband's application for the wife to show cause as to why an order should not be granted in the terms of the agreement reached.

On the facts, there was no dispute that the parties met on three occasions with their respective solicitors in an attempt to resolve proceedings, in total spanning several hours and concluding in the signing of a document at the end of the third and final meeting. This document set out, in broad terms, the division of assets and what other terms had been agreed between them.

However, when the wife sought to resile from the agreement on the basis that she did not consider herself bound by it, this prompted the husband to issue the show cause application.

In opposing the application, the wife raised the issue of undue influence, with reference to various potential vitiating factors in relation to how the agreement was reached. This included the pressure exerted on her by the circumstances of the meetings, especially in the context of what she said reflected the husband's coercive behaviour towards her during the marriage.

The wife also referenced the overall unfairness of the arrangement, amounting to a substantial departure from equality in a sharing case where, in addition, such capital as she would derive from the agreement would have to be used in part to generate income, unlike her husband.

At first instance, the court refused to direct an abbreviated hearing, finding that there was "no clear substratum of established fact in this case", where even the net effect of the agreement was in itself in dispute. As such, the court would be required to case manage towards a final hearing, at which a detailed analysis of the agreement would form one of the section 25 factors under the Matrimonial Causes Act 1973. The husband appealed to the High Court.

In dismissing the husband's appeal, Theis J acknowledged the comments made by the judge at first instance in the desirability of upholding agreements that had been entered into between the parties. However, as that judge had rightly reminded himself when considering whether to direct a shortened hearing, each situation is fact-specific in relation to the individual case.

Given the factual dispute on the information available to the court as to the circumstances of the meetings that led to the agreement, including whether or not the wife was placed under undue pressure, this could not be determined at a 'show cause' hearing.

Accordingly, it was held that the judge had not been wrong to refuse to deny the husband a hearing of the notice to show cause application. The court also held that there was no authority to support the proposition that the issuing of such an application created some kind of entitlement that the application should be heard unless doing so would serve no purpose.

That said, the High Court echoed the warning provided by the lower court, that dismissing the appeal was not to give the wife false hope. On the facts, the existence of the agreement did not appear to be in dispute, where there were, and could be, valid points on both sides.

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