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Court of Appeal upholds ‘rare’ successful Barder appeal

Husband’s inheritance invalidated consent order

The Court of Appeal has upheld a wife's appeal on the basis that her former husband's inheritance was a Barder event which invalidated the foundation upon which a consent order had been made.

Critchell v Critchell [2015] EWCA Civ 436 was a needs-based case where the parties had settled at FDR. A consent order was agreed 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.

However, within a month of the consent order, the husband's father died leaving him an inheritance of £180,000. The wife sought to appeal on the basis that the husband's inheritance was a Barder event which invalidated the basis upon which the consent order had been made.

Her Honour Judge Wright allowed the wife's appeal and varied the consent order by extinguishing the Husband's charge over the former matrimonial home. Her Honour Judge Wright considered the four conditions in Barder and held that the husband's inheritance had invalidated the basis of the consent order. Judge Wright reasoned 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. However, in dismissing the husband's appeal, Lady Justice Black endorsed the reasoning of Her Honour Judge Wright. Lady Justice Black stated that Judge Wright was correct to analyse the consent order, as being the only way, in the circumstances then prevailing, that the husband could be 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. 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.

Lady Justice Black commented:

"I would emphasise again that it is rare for a case to come within the Barder principles. It is well to remember what Lord Brandon said at page 493 of Barder when he explained that the question before the court was a difficult one because it involved a conflict between two important legal principles and a decision as to which should prevail. One principle was that cases should be decided, so far as practicable, on the true facts and the other was that it was in the public interest that there should be finality in litigation. The strength of this latter principle is to be seen in the restrictive application by the courts, over the years since Barder, of the conditions laid down in that case. The present judgment is not intended to change the jurisprudence on the subject and is no more than an application of the principles to the particular stark facts of this case."

For the judgment and summary by Patrick Paisley of 1 Garden Court Family Law Chambers, from which this item is derived, please click here.