The Enforceability of Recitals in Family law Consent Orders. Has anything changed since the case BSA v NVT?

The case of BSA v NVT [2020] EWHC 2906 (Fam) has sought to address enforceability issues surrounding recitals as part of a consent order made in financial remedy proceedings (family law financial orders made on divorce). The judgment brings much-needed clarity to this technical point of law for those who are in the process of entering into consent orders. It is especially important to those who require an understanding of the enforceability of all parts of their agreement.

The purpose of recitals is to set out the parties’ intentions for future arrangements and are often key in reaching an agreement on issues. The key difference between a recital and an order is that the court automatically has the power to enforce an order whereas a recital acts to clarify background information. Hence why some argue that recitals are merely of use to record information that is already apparent to the parties.

The difference between a recital and an order was also found to be of importance in X v Y where Tolson J included agreed child arrangements for the younger child in the order as a recital to avoid a ‘firmly worded order’. The husband sought to appeal to include the arrangement in the order so it could be directly enforceable. This difference was key given the court has the power under the Children Act to make a contact order. Mrs Justice Theis allowed the appeal limited to the form of the order concerning the younger child’s arrangements. Therefore, the nuance between an order and a recital is magnified depending on the court’s powers in a particular case to enforce an order.

It is necessary to provide some factual background to BSA v NVT to understand the key takeaways from the judgment. The parties are parents to two children and an order was made by the mother when the father failed to provide a housing fund under a consent order.

This order included:

• an order for financial disclosure;
• endorsement of the order of December 2018 with a penal notice;
• a costs allowance order in favour of the mother and to allow for a further hearing.

The father appealed this order alleging the judge had made an error in allowing enforcement of an agreement that did not constitute an order of the court. He submitted the matters breached were recitals to the 2018 order and so could not be ordered by the court.

The judgment made by Williams J in BSA v NVT focuses on previous authority in H v H (Financial Provision) where Thorpe J said that: ‘no issue was found with the premise a recital can be enforced as if it had been an order of the court.’

Williams makes the point that the technical wording of the arrangements should not prevent the parties carrying out their agreed wishes: ‘It would be surprising if the detailed and comprehensive agreement that the parties reached securing the future material needs of the children crystallized on the face of an order in the formality with which it was expressed was not intended to be legally enforceable.’  Williams J also found that the court has jurisdiction to make the order including the recital: ‘the recital may be enforced provided the court would have had jurisdiction to make an order in like terms.’

The main points of law which can be taken from the judgment in BSA v NVT is that recitals recorded within a consent order may be enforced as an order, with the proviso that the court must have the jurisdiction to make such an order. Therefore, it should be explained to litigants that in most cases an agreement recorded as a recital will be enforceable.

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