A rare successful Barder appeal

Family Law|May 5th 2015

“Orders setting out financial/property settlements on divorce are intended to be final, but what if an event were to occur shortly afterwards, but beyond the period normally allowed for an appeal, which undermined the whole basis upon which the order was made? Will the court in those circumstances be prepared to grant permission to appeal out of time?”

So began a post I wrote here last August, in which I described the important case of Barder v Barder, in which the House of Lords set out four conditions that would have to be satisfied before the court would grant permission to appeal out of time:

  1. That the new events that occurred since the making of the order invalidate the basis, or fundamental assumption, from which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed.
  2. That the new events have occurred within a relatively short time of the order having been made.
  3. That the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
  4. That the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.

As I said at the end of my previous post, relatively few Barder appeals have been successful, as orders are supposed to be final, and the circumstances therefore have to be exceptional for them to be re-opened. However, last week we saw a rare example of a successful Barder appeal.

Somewhat unusually for a reported financial remedies case, Critchell v Critchell involved parties of relatively modest means, and circumstances that are quite commonplace. After the parties separated the wife remained in the former matrimonial home with the two children of the family. The property had an equity of £175,000. The husband had purchased a home for himself, using £85,000 borrowed from his father and the balance raised by mortgage. His property therefore had no equity, and accordingly the former matrimonial home was the only significant matrimonial asset.

In March 2013 a financial dispute resolution hearing took place. Following an indication from the district judge as to the likely outcome, the parties agreed to a settlement whereby the former matrimonial home was to be transferred to the wife in return for a charge in favour of the husband for 45 per cent of the net proceeds of sale, such charge not to be enforced until the children grew up/finished secondary education, the wife died, the wife remarried or cohabited or the property was sold, whichever occurred first. A consent order was drawn up in these terms.

Less than a month after the order was made, the husband’s father died, quite unexpectedly. The husband inherited about £180,000 from his father’s estate, and his liability to repay the £85,000 loan was extinguished.

In September 2013 the wife appealed against the consent order, claiming that the inheritance was a Barder event, which invalidated the basis or fundamental assumption upon which the consent order had been made. The judge found that the case was based upon the needs of the parties, in particular for housing. At the time of the order, the husband needed his interest in the former matrimonial home so that he could eventually pay off the loan from his father. However, he no longer had that need after his father died. Accordingly, the basis of the order had been fundamentally undermined. The wife’s appeal was therefore allowed and the consent order was varied by extinguishing the husband’s charge over the former matrimonial home. The husband appealed against this order.

The Court of Appeal dismissed the husband’s appeal. Giving the leading judgment Lady Justice Black accepted the reasoning of the judge on the wife’s Barder appeal. However, she concluded her judgment by emphasising again that it is rare for a case to come within the Barder principles: this case was not intended to change the law, and was “no more than an application of the principles to the particular stark facts of this case”.

Photo by Images Money via Flickr

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  1. Andrew says:

    Interesting. When a relation of mine was divorced a few years ago they both included in their witness statements in support of the clean break order words to the effect that “I would not wish, and I understand that [the other party] would not wish, the arrangements which we have agreed to be changed even if circumstances change after the order is made”.

    My relation was advised that while they could not exclude the Barder jurisdiction that would make it even more difficult to jump the Barder hurdle.

    Any views, John?

  2. Nordic says:

    So, the ex wife effectively ended up inheriting the ex-husbands father. I wonder what that father would have said had he know his ex daughter-in-law would end up benefitting from half his estate and not his son. It could only happen here.
    But hey, that’s apparently fairness in the English first wives club (sorry, family courts). And at least we made sure to instigate, what one suspects will be, life-long acrimony between the parents. All in the best interest of the children of course.

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