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Forder v Forder [2005] EWCA Civ 1572

Application by husband for permission to appeal, out of time, an order transferring to his former wife all his legal estate and beneficial interest in the matrimonial home, subject to a charge. It was the claimant’s case that this was a Barder application, because he claimed that supervening events invalidated the original order. Application dismissed.

Forder v Forder [2005] EWCA Civ 1572

Court of Appeal: Ward LJ and Arden LJ (24 November 2005)

Summary
Application by husband for permission to appeal, out of time, an order transferring to his former wife all his legal estate and beneficial interest in the matrimonial home, subject to a charge. It was the claimant's case that this was a Barder application, because he claimed that supervening events invalidated the original order. Application dismissed.

Background
The parties' marriage broke down sometime prior to 29 November 2002, when the original ancillary relief orders were made by Coleridge J. There were 4 children of the family and their welfare was the main consideration of the judge. At the time of the marriage breakdown, the main carer was the wife and the judge decided that the children and the wife needed a secure home to minimise further disruption to their lives.

In the original proceedings Coleridge J was dealing with 3 properties, including the matrimonial home, which was the subject of this appeal. The proceedings were not straightforward because there were issues about the extent to which a partner of the husband had a beneficial interest and/or a charge over the matrimonial home.

The judge did not divide the assets equally between the parties. He gave the former matrimonial home to the wife, subject to a charge in favour of the husband's partner. This charge amounted to 17% (reduced from one third by the judge) of the gross proceeds of the sale of the property, which could not be exercised until the earlier of a) 10 years passage and b) the re-marriage or 12 month cohabitation of the wife.

The husband said that there had been a fundamental change in the circumstances of this case because, although it was envisaged the children would live indefinitely with their mother in the matrimonial home, the children were in fact now living with him, following a breakdown in relations between mother and children.

In this application Ward LJ had to first decide when the supervening event, the movement of the children from mother to father, took place. He then considered 4 conditions laid down by Lord Brandon in Barder v Barder [1988] AC 20, namely:

The children moved in with their father at different times. The minimum delay between the original order and the supervening event was calculated to be 20 months, the maximum over 2 years. It was considered that this delay was outside that which was contemplated by Lord Brandon, who said that the delay should be measured in weeks or months but not years. The delay of over a year between the supervening event and filing the notice of appeal was also regarded as not proceeding promptly.

As regards condition 4, the judge argued that if he allowed the appeal, the whole order should be appealed since the husband's partner had apparently been denied an interest in the property. Any appeal would have to include the re-consideration of her beneficial interest prior to the downward adjustment made by Coleridge J.

Judgment
Held, dismissing the application, that the father had no real prospect of success in establishing the Barder criteria. The second condition, that the supervening event should have occurred weeks or months, but not years, after the original order was made, was not fulfilled.

Read the full text of the judgment here