Barder v Caluori

JurisdictionEngland & Wales
Judgment Date09 May 1986
Judgment citation (vLex)[1986] EWCA Civ J0509-3
Docket Number86/0427
CourtCourt of Appeal (Civil Division)
Date09 May 1986
Christina Sandra Barder
David Donald Peter Barder


Jacqueline Florence Caluori

[1986] EWCA Civ J0509-3


Lord Justice Dillon

Lord Justice Stephen Brown

Lord Justice Woolf





Royal Courts of Justice

MR C. J. TATHAM, instructed by Messrs Wood, Nash & Winter's, appeared for the Appellant (Intervener).

MR A. H. WARD, Q.C., and MR HOWARD SHAW, instructed by Messrs Thomson, Snell & Passmore (Tunbridge Wells), appeared for the Respondent (Respondent).


This appeal raises questions of law which I find of considerable difficulty.


The appeal arises out of matrimonial proceedings brought by a wife, Mrs Christina Barder ("the wife") against her husband Mr David Barder ("the husband") claiming dissolution of their marriage and the usual ancillary relief. The present appellant, Mrs Caluori, who was given leave to intervene in the suit, is the mother and sole personal representative of the wife; the husband is sole respondent to the appeal. The appeal, by leave of the judge, is against an order of Judge Smithie made in the Basingstoke County Court on 15th November 1985.


The facts of the case are not in dispute.


The husband and the wife were married in November 1973. They had two children, a son born in January 1976 and a daughter born in June 1978. The husband was a member of Lloyd's; the wife, who had at one stage worked as a secretary, gave up work when she became pregnant with their elder child. The matrimonial home, from September 1978, was a substantial five bedroom house known as Hollybourn at Hartley Wintney in Hampshire which was owned by the husband and wife jointly, subject to mortgages.


The marriage broke down and the petition for divorce, claiming also ancillary relief, was presented by the wife on 21st February 1984. It was founded on adultery by the husband with another woman whom he has since married. The decree nisi was pronounced on 20th July 1984 and the decree absolute on 25th September 1984. The husband had left Hollybourn and had bought a flat in Philbeach Gardens, London SW5. The wife remained at Hollybourn with the children; care and control of the children was awarded to the wife, with reasonable access for the husband. So far as financial provision was concerned, the case was regarded as appropriate for a clean break, and after negotiations a consent order was made by Mr Registrar Fuller in the Basingstoke County Court on 20th February 1985. This order was expressed to be made in full and final settlement of all claims made or capable of being made by the wife or the husband against each other. It provided that the husband should within 28 days transfer and release to the wife all his legal and equitable interest in Hollybourn and the proceeds of sale thereof and in the contents thereof and the wife undertook that on their transfer to her being made she would redeem the existing mortgages on Hollybourn. There were also undertakings as to certain life policies held by the mortgagees, and the husband was ordered to make certain periodic payments to the children. The husband had five days to appeal to the judge against that order of the Registrar, had he been minded to appeal, but of course at that stage he had no thought of appeal. On 25th March 1985, however, the wife killed both the children and committed suicide. The extent of anguish and despair that she must have suffered before this tragic act does not bear contemplation.


At the time of the wife's death, the Registrar's order of 20th February was still executory. Although the time limit of 28 days under the order had expired, the necessary documents had—not surprisingly—not been executed. After learning of the death of the wife and children, the husband acted with reasonable promptness, and on 23rd April 1985 he issued a notice in the County Court seeking leave to appeal out of time against the Registrar's order. The wife's mother was given leave to intervene to oppose that application, but on the hearing of the application the judge, by the order now under appeal, gave leave to appeal out of time, allowed the appeal, and set aside the Registrar's order. I shall have to refer later to certain of the grounds of his decision.


The first point taken by Mr Jackson Q.C. in his argument for the appellant in this court has been a point of jurisdiction, viz that the judge had had no jurisdiction to give leave to appeal, or to entertain an appeal, because the proceedings, being matrimonial proceedings, had abated irredeemably by the death of one of the parties to the marriage, viz the wife. Mr Jackson relies on the well established line of decisions, exemplified by D'Este v D'Este (1973) Fam 55, in which the reasoning is clearly set out, where it has been held that the jurisdiction of the matrimonial courts is personal for the benefit of living persons and that a claim for ancillary relief cannot be pursued after the death of a party to the marriage.


Mr Jackson accepts, however, that where an order has been made in matrimonial proceedings and one of the parties then dies, the order may nonetheless, according to the nature of the relief ordered, be enforced by or against the estate of the deceased party. This was recognised by Denning L.J. in this court in Sugden v Sugden (1957) P120 at 134 where he said that the causes of action which, by virtue of the Law Reform (Miscellaneous Provisions) Act 1934, would survive the death of a party would extend to "rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies." Examples are Mosey v Mosey (1956) P26 (an order, made before his death, against a husband to provide security for continuing payments could be enforced against his estate), Warren-Gash v Lane (1984) 14 Family Law 184(a consent order made, before his death, against a wife to transfer property to her husband could be enforced by his executors after his death) and Rysak v Rysak (1967) P179 Can award of damages against a co-respondent could after his death be enforced against his estate). In the last-mentioned case, Mr Justice Park suggested as an explanation (though on the wording of the particular order it would not directly apply in the present case) that on the making of the order the claim for relief under the matrimonial statutes, which was personal, was satisfied and was replaced by a fresh cause of action under the order which survived the death by virtue of the 1934 Act.


It is as well to mention at this stage that it is common ground between the parties that it is irrelevant, for any of the arguments on this appeal, that the registrar's order of 20th February 1985 was a consent order. It was clearly laid down by this court in Thwaite v Thwaite (1982) Fam 1 that consent orders in these matrimonial cases derive their force from the order of the court, and are thus to be distinguished from consent orders in other types of litigation which derive their force and effect from the contract between the parties leading to or evidenced by the court order. Thus consent orders in these matrimonial cases must be dealt with, so far as possible, in the same way as non-consensual orders. See the judgment of Lord Justice Ormrod at page 8.


If the order of 20th February 1985 for the transfer of property subsists, despite the death of the wife, and would be enforceable against the husband, then, in my judgment, it must follow: (1) that the husband must be entitled to resist enforcement on any ground open to him, e.g., as in Thwaite v Thwaite, on the ground that because of the wife's conduct after the order was made, it would be inequitable to order him to complete the transfer of property ordered, and (2) that any right of appeal of the husband, with or without leave, against the order also survives.


It is unthinkable that the order should survive and be enforceable, and yet any defences of the husband to the enforcement of the order and any right of appeal against the order have abated. The learned judge in the court below took the view that he was entitled to entertain jurisdiction with respect to an order which was made while the parties were alive. I would agree with that way of putting it, and all the more so in that I regard the husband's appeal as a procedural alternative to his defending an application by the wife's estate to enforce the order, had such an application been made. I do not think it was incumbent on him to wait for such an application to be made.


I see no relevant distinction in principle, on this part of the case, between an appeal within time against an order made before the death, and appeal by leave made out of time against such an order. whether or not leave to appeal out of time should on the facts have been granted is a separate question to which I turn later. A possible scenario—not this case—would have been if a wife had obtained a very favourable property transfer order by failing to disclose valuable assets and had then died shortly after the order was made; if the husband then learned of the undisclosed assets from the Inland Revenue affidavit, it would be most unjust if he could not appeal out of time to have the order set aside.


If then the judge, in the present case, had jurisdiction to entertain the husband's application for leave to appeal out of time, was he right to grant that leave and allow the appeal?


In his judgment, the judge referred to the undoubted truth that a consent order could be set aside because of fraud or misrepresentation at the time of the making of the order. He then said: "Fraud is not the only ground for setting aside a...

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