Critchell v Critchell


[2015] EWCA Civ 436

Judgment in financial remedy proceedings in which the Court of Appeal restated the application of the principle in Barder v Barder (Caluori intervening) [1987] 2 FLR 480.
This 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. 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.

Finally Lady Justice Black commented that it is rare for a case to come within the Barder principles.

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