S v S

Martin Pointer QC and Justin Warshaw (instructed by Withers and Co) for the Applicant Jeremy Posnansky QC (of Farrers &Co LLP) for the Respondent Hearing dates: 31/7/2008 ____________________

ii) The court when considering whether there is an agreement and its effect if there is, does so against the backdrop of 225.

Mr Pointer relies on Smith v Smith [2000] 3 FCR 374 in support of his submission that the issue of an agreement should not be dealt with as a preliminary issue in isolation by way of a Notice to Show cause. Smith v Smith is an example of a case where the court at first instance fell into the trap of considering an agreement as a preliminary issue in isolation without any consideration of the s25 factors. As a consequence an order was made holding a wife to an agreement which singularly failed to meet her basic needs.

I do not take Smith v Smith to be saying that the court must always hear a case as a full blown ancillary relief hearing where there is an alleged agreement, but rather as a trenchant reminder that an agreement forms part of all the circumstances of a case and that, even if such an agreement be found to be of magnetic importance, the court should only ever consider such an agreement against the backdrop of all the s25 factors.

There is no reason why in an appropriate case, the status of an alleged agreement should not be dealt with as a Notice to Show Cause determined against the backdrop of a consideration of the s25 factors. Such an approach is in my judgment, fundamentally different from one where the court embarks on a consideration of evidence as to the existence of an agreement as a preliminary issue, in a vacuum, with no consideration of the surrounding circumstances or s25 factors.