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11 May 2015

Court allows Consent Order to be varied

Orders setting out financial settlements upon divorce are commonly referred to as Consent Orders and are intended to be final.  Occasionally, an event may occur shortly after the Consent Order is made but beyond the period normally allowed for an appeal, which undermines the whole basis upon which the order was made.

In such circumstances, if certain conditions are met, the court may be prepared to grant permission to appeal out of time.  The historical case of Barder v Barder set out four strict conditions that have to be satisfied.  Very few such appeals have been successful, on the basis that such orders are intended to be final and the subsequent event has to therefore be exceptional.

In the recent case of Critchell v Critchell, a Consent Order had already been made, which provided that the wife retain the matrimonial home, worth £190,000 and there be a charge in favour of the husband, equal to 45% of the equity.  When the husband and wife separated, the husband had purchased a new home using £85,000 borrowed from his father and £63,000 on a mortgage.

However, within a month of the Consent Order being made, the husband’s father died unexpectedly, leaving him an inheritance of £180,000 and with the consequence that the loan of £85,000 would not need to be repaid.  Therefore, the wife sought to appeal on the basis that the husband’s inheritance was a “Barder” event, which invalidated the basis upon which the order had been made.

The court allowed the wife’s appeal and varied the Consent Order by extinguishing the husband’s charge over the former matrimonial home.  The Court held that the husband’s inheritance had invalidated the Consent Order, on the basis that since the original order had been based upon need, while the wife’s need had remained the same, the husband’s inheritance meant that he no longer needed his share in the former matrimonial home.

The husband sought to appeal that decision, which was dismissed.  The court said that the resources of the parties had significantly changed and the husband could be now enabled to pay off his debts at a future date, leaving the parties in fairly equal capital positions in terms of the equity in their properties.

Emma Alfieri, divorce and family lawyer, commented: “The impact of the inheritance so soon after the hearing was that the husband no longer needed his interest in the former matrimonial home to discharge his indebtedness.  There had been a fundamental change in the needs of the parties.  Consent Orders are intended to be final and therefore it is very unusual for a case to come within the Barder principles.  As a result, we rarely see cases such as this.”

For further information please contact our family law team.

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