The father of two children has been granted permission to launch a late appeal against a financial order issued during his divorce.
The case concerned a couple who married in 1998 and who are both now in their mid-40s. They had two children, now aged 13 and ten, but the marriage began to break down and divorce proceedings began in 2013. The couple, however, continued to live in the same house with the children.
Despite disagreements regarding the sale of the house, the couple determined that they would enter a shared residence arrangement, with the children spending part of their time with one child and part with the other.
A deputy district judge ordered that the house be sold and the net proceeds divided, with approximately 70 per cent going to the wife and 30 per cent going to the husband.
In a recently published High Court judgement, Mr Justice Holman explained that this unequal division was prompted by two separate factors. Firstly the husband earned a higher salary and could therefore access a larger mortgage than the wife. Secondly, the former couple expected the children to spend around 70 per cent of their time with the wife, and only 30 per cent with the husband. Consequently, said the Judge:
“It was clearly recognised that both parents needed a suitable home in which to live and accommodate their children, but it is also clear that the deputy district judge felt that the wife had the greater need since the children were going to spend significantly more time with her than with the husband.”
The deputy district judge’s decision on the matter had been “painstaking and impeccable”, said Mr Justice Holman, and it could not be faulted.
Subsequent, “deeply regrettable” events, however, changed the situation. A few weeks after the order was made, the wife became embroiled in a physical confrontation with her teenage daughter, which led to her prosecution. She received a conditional discharge.
The Judge noted:
“Rather more significant is the fact that the criminal proceedings involved both children actually giving evidence by video link in the magistrates’ court against their mother and being questioned by what would normally be called ‘cross examination’.”
As a result, and “very tragically”, the children became alienated from their mother and began living with their father full time.
The father returned to the court and applied for permission to appeal against the financial order made by the deputy district judge, claiming that the children’s move constituted a ‘Barder event’. Named after the 1988 case of Barder v Barder, the term is used to refer to a significant change in circumstances which may justify an appeal against a financial settlement ‘out of time’ – i.e. beyond the usual legal deadline.
At the High Court, Mr Justice Holman ruled that the husband’s case was a fair one and the children’s decision to live with him full time may indeed have constituted a Barder event from a legal point of view. Consequently he granted the man permission to appeal. The Judge added that, if the wife had been present in court, he would have been inclined to allow the entire appeal immediately and order a rehearing of their financial settlement. Since she was not, a further appeal hearing would have to take place.
The Judge also expressed concern at the approximately £30,000 the two parties had spent on “protected litigation” to date. He concluded:
“I wish to stress, again and finally, that nothing whatsoever in my decision and judgment today reflects in the least upon the decision and judgment of the deputy district judge which was, in the circumstances prevailing at the time, impeccable.”
Nasim v Nasim can be read here.