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In medias res: the final order has just been drawn; the wife has died; what is one to do?

Byron James, 14 Gray’s Inn Square, considers Barder events in the light of Richardson v Richardson

Byron James, barrister, 14 Gray's Inn Square

Byron James, barrister, 14 Gray's Inn Square

Death is always recorded as being about the person who has died; in reality, it is usually more about the people left behind.

It creates a space that affects the world by that absence. Coping with loss, finally knowing and understanding that the gone are never coming back, is psychologically difficult for us to grasp. We are used to losing people every day in different degrees. Hello, goodbye is all part of the daily routine. We become accustomed to there being another chance, another day.  Divorce, by stark contrast, does not offer finality of any kind, it just lengthens the odds.

Despite the everyday hyperbole of the fictional, death is rarely glamorous, heroic or dramatic. Instead, it creeps; a soon all engulfing shadow that dims and destroys by inches over time.  This kind is rarely the stuff of reported cases; usually, death and family law only dance together in the most tragic, headline grabbing circumstances. The family law reports are all about drama. What more dramatic then than a divorce followed by an unexpected death, death being the ultimate mockery to the finality we promise our ancillary relief clients. In Richardson v Richardson [2011] EWCA Civ 79 the wife suffered a heart attack two months after the final order had been made: heartbreak, following divorce, of a different kind from the usual.

In medias res: the final order has just been drawn; the wife has died; what is one to do? There is precedent, although the commonality of the term Barder event belies the horror of the events of the case itself, with the wife killing herself and the children five weeks after the ancillary relief order had been drawn.  In Richardson, Munby LJ also referred to others (para 18):

"There have been others in which the claim has succeeded: Smith v Smith (Smith and Others Intervening) [1992] Fam 69 (wife committed suicide within six months); Barber v Barber [1993] 1 FLR 476 (wife died of liver disease within three months); Reid v Reid [2003] EWHC 2878 (Fam), [2004] 1 FLR 736 (diabetic wife with high blood pressure died within two months).."

Death can be part of a Barder event but is not always sufficient on its own. Rather, Lord Brandon's test is that the death must "invalidate the basis, or fundamental assumption, upon which the order was made". In the real world, death changes everything; but only sometimes, it seems, in the family law world.

Ab intio, one would be forgiven for assuming that, in the ordinary course of events, the wife dying soon after the order is drawn is quite likely to invalidate the basis upon which the order was made. Clearly, in such circumstances, the factual basis upon which the order was made has changed. The factual basis alone however is not enough, the basis upon which the order was made, that is to say the application of both factual and legal principle involved, must be shown to have been invalidated by the death.

It is understanding the difference between the application of fact and principle that lead Munby LJ to draw a distinction between those cases which are determined on a needs basis and those in which the award is beyond needs, such as where the award is more contribution driven (para 18):

"Where… the wife's future needs had been a central or critical factor in assessing the quantum of her award, it may not be very difficult for the surviving husband to bring his case within Lord Brandon's test."

The assessment of needs when the order is drawn is likely to be based upon a wife living for years rather than weeks. An unexpected death very shortly (note the timeframe) afterwards is easily understood as an invalidation of the basis upon which the order was made: the very basis upon which the amount awarded has been calculated is invalid. This is useful guidance: whilst a death in itself is not a Barder event, a death which occurs very shortly after an award has been calculated upon a needs-over-a-much-longer-period-of-time-than-has-passed-since-the-death basis (i.e. 'years not weeks') has been validated by the Court of Appeal as not 'very difficult' to argue as a Barder event.

Richardson was not a needs case. The Court at first instance had sought to achieve equality (para 19):

"The magnetic, indeed overwhelming, factor in this case, which in my judgment dominates above all else, is that the wife, by her labours over many years, both as a wife and as the husband's active business partner, had earned her equal share in the matrimonial assets…. This was a wife who had earned her share and was entitled to have that recognised by the Family Division."

Munby LJ pre-emptively countered the 'death before hearing' argument (i.e. that if the wife had been dead before the hearing then the court would not have made any orders therefore the basis upon which the order was made has been invalidated by the death) by setting out (para 20):

"In such a case the unexpectedly early death of the wife very soon after the ancillary relief order has been finalised does not entitle the surviving husband to re-open the matter. The death is simply not a Barder event, because the calculation of and obligation to pay the amount awarded is not referable to the wife's needs or to her future expectation of life. Being referable solely to what the wife has earned by her past endeavours, the award does not look to the future; it looks to the past. So the death of the wife, whenever it occurs, and however soon after the court has made its order, does not "invalidate the basis, or fundamental assumption, upon which the order was made". As Ms Harrison succinctly put it, the wife's death does not change or alter the husband's needs or the wife's entitlement to share equally in the assets."

The basis upon which the order was made is therefore only invalidated if the basis of the order requires the wife to be alive for a period of time much beyond her actual life. Where a case is not needs driven, and "the award does not look to the future; it looks to the past" (above), acting essentially as just desserts for the contributions made by that wife during the marriage, then the wife dying does not invalidate the basis upon which that order was made, because the efficacy of the order, the principles upon which it was founded, are still good whether the wife is alive or dead. There is no reason why the award should simply fall to the husband, and no reason why these sums should not be left as wished by the wife in testament.

The court nevertheless found a Barder event in Richardson for reason other than the unexpected death of the wife: that is, insurance cover that in reality was much less than was understood at first instance. This case is a clear reminder of the principles which apply when a husband or wife die very shortly after an ancillary relief order. Barder events will be rarely upheld; although, clearly, it is a rare event that a husband or wife dies so soon after an order is made. There is a distinction to be drawn between needs cases and those beyond needs when it comes to the success of a Barder event, based solely on the death alone. The key is to examine the extent to which the order was forward looking, condition precedent upon the dead party's needs over a certain period of time, with that period of time sufficiently different to be able to argue that the basis upon which the order was made must now be considered, invalidated.