Anthony Critchell v Charlotte Critchell
| Jurisdiction | England & Wales |
| Judge | Black LJ,Richards LJ |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] EWCA Civ 436 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2015 |
| Docket Number | Case No: B6/2014/1152 |
[2015] EWCA Civ 436
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (PRINCIPAL REGISTRY OF THE FAMILY DIVISION)
HER HONOUR JUDGE WRIGHT
RM11D00946
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
and
Lady Justice Black
Case No: B6/2014/1152
Mr Nicholas Elcombe (instructed on a direct access basis) for the Appellant
Mr Charlie Peat (instructed by Palmers Solicitors) for the Respondent
Hearing date: 22 nd April 2015
This appeal concerns ancillary relief proceedings and, in particular, the application of the principle in Barder v Barder (Caluori intervening) [1987] 2 FLR 480. The appellant is Anthony C ("the husband"). The respondent is Charlotte C ("the wife").
The parties are in their mid forties. They were married in 2001. They have two daughters aged 14 and 12. They separated in August 2010. The husband moved out of the former matrimonial home leaving the wife living there with the children. He bought himself a home using £85,000 borrowed from his father and £63,000 taken on mortgage.
On 12 March 2013, a financial dispute resolution hearing took place before District Judge Mullis. At the time, the only significant matrimonial asset was the former matrimonial home. It was worth approximately £190,000. There was a mortgage of £10,000. Allowing for notional costs of sale, the net equity was therefore taken as £175,000. The husband's home had little, if any equity. In her Form E financial statement dated September 2012, the wife said that she was working part time, earning a modest salary as a hair stylist and also receiving working and child tax credits and child benefit. The husband is a painter and decorator who works as a sole trader. In his Form E dated August 2012, he estimated that his net annual income was £5,000 but noted that he had been unable to work full time because of an injury and hoped that his income would improve later in 2012. He too was receiving working tax credit. He was paying some maintenance for the children through the Child Support Agency.
Following an indication from District Judge Mullis at the financial dispute resolution hearing, the parties came to terms about ancillary relief. A consent order was made that day, essentially in Mesher terms. It provided for the former matrimonial home, which was in joint names, to be transferred to the wife, subject to the mortgage on it for which she was to take over responsibility. There was to be a charge in favour of the husband for a lump sum equal to 45% of the net proceeds of sale of the property. The charge was not to bite until the earliest of four trigger events, namely:
i) the youngest child reaching 18 or completing full time secondary education, whichever is the later;
ii) the death of the wife;
iii) the remarriage, or cohabitation for a period of six months in any twelve month period, of the wife;
iv) sale of the property.
It was further provided that the charge was not to be exercisable without leave of the court while any child of the family in occupation of the property was still a minor, or was of full age but still in full time secondary education. The order also made provision for nominal periodical payments from the husband to the wife for a period of time.
Within a month of the consent order, the husband's father died, on 9 April 2013, leaving him a sum of money. By a notice of appeal dated 4 September 2013, the wife therefore sought to appeal against the consent order. Despite suggestions in the wife's notice and grounds of appeal that the husband was aware of his inheritance prospects at the time of the consent order and failed to disclose this, by the time of the hearing before Judge Wright it was accepted that the husband's father's death was "completely unforeseen" (as the judge recorded at §6 of her judgment). The wife's case was put on the basis that the inheritance was a Barder event which invalidated the basis or fundamental assumption upon which the consent order had been made.
Her Honour Judge Wright granted permission to appeal in January 2013 and gave directions with a view to a hearing before her in March 2014.
On 20 March 2014, Judge Wright allowed the wife's appeal and varied District Judge Mullis's order by extinguishing the husband's charge over the former matrimonial home, which was to be the wife's sole property. It is from that order that the husband appeals.
For the Barder principle to apply, four conditions must be satisfied. In Barder (@ 495), Lord Brandon (with whom there was unanimous agreement) reviewed the authorities and said:
"My Lords, the result of the two lines of authority to which I have referred appears to me to be this. A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. That fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order." (my italics)
It was conceded before Judge Wright, as it was before us, that the second, third and fourth conditions were satisfied in the present case. The issue was over the first condition. Judge Wright therefore focussed upon whether the husband's inheritance had invalidated the basis of the order made by District Judge Mullis.
The inheritance was agreed to be about £180,000 and, in addition, such liability as the husband had to repay the £85,000 to his father was extinguished.
Judge Wright considered that the original order had been based upon need (see §16 of her judgment) and that, whereas 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. In a key passage in her judgment, she said:
"16. This case was always based on need. This was not a case in which the value of the assets, that is the matrimonial assets, changed. This was a case where effectively a windfall came to the husband very quickly after the order which was made.
17. I have no hesitation in...
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