As divorce lawyers we always advise our clients with confidence that the final\u00a0 financial settlement that they have incorporated into a Court Order \u00a0is exactly that i.e. final. We always have to add that there is some small print however that the chances of their Order being anything other than final are very slim indeed.<\/p>\n
Family lawyers all over the Country therefore will be interested to say the least\u00a0 in the Court of Appeal\u2019s recent decision in the case of Critchell \u2013v- Critchell.<\/p>\n
The Court of Appeal has upheld Mrs Critchell\u2019s appeal against an Order that was made determining their financial settlement on Divorce.<\/p>\n
The original decision of the Court for Mr and Mrs Critchell was that Mrs Critchell could remain in the family home but that Mr Critchell would retain a 45% interest in it. The intention was to broadly speaking achieve equality with Mr Critchell being able to use the money he had received from the property in due course to discharge debts. \u00a0This is what we lawyers call\u00a0 a needs based case i.e. Mrs Critchell needed a home and Mr Critchell needed some money to pay off his debts at some point and the Court has to weigh up and balance those needs.<\/p>\n
However, within a month of the Order being made by the Court Mr Critchell\u2019s father sadly passed away.\u00a0\u00a0 Mr Critchell inherited his father\u2019s Estate in the sum of \u00a3180,000.\u00a0\u00a0 The wife sought to appeal against the original order \u00a0of the Court saying that the husband no longer needed the money.\u00a0 Her argument was that there had been a Barder event which invalidated the basis upon which the Order had been made. She has been successful and Mr Critchell\u2019s interest in the family home has now been transferred to Mrs Critchell and he will not receive any share of the property\u00a0 in the future.<\/p>\n
So how can this be possible?<\/p>\n
What is the Barder event that Mrs Critchell\u2019s lawyers argued on her behalf?<\/p>\n
Back in the 1980s Mr and Mrs Barder divorced.\u00a0\u00a0\u00a0 Mrs Barder was looking after their 2 children and, based\u00a0 upon her need for housing, the Court Ordered Mr Barder to transfer to his ex wife all his interest in the family home.<\/p>\n
However, somewhat tragically only 5 weeks after the Order was made by the Court and before the house had actually been transferred to Mrs Barder, Mrs Barder committed suicide having first killed their 2 children.<\/p>\n
Mrs Barder\u2019s will left all her estate to her mother who argued that Mr Barder should transfer his interest in the property to her.\u00a0 Mr Barder appealed\u00a0 to the Court.\u00a0 He asked the Court to allow him:<\/p>\n
In that case the Court decided that Mr Barder would be allowed permission to start his appeal outside of the usual time limits and that his\u00a0 appeal would succeed.\u00a0\u00a0 The Court in that case set down principles which have been applied ever since.<\/p>\n
In the Barder case Lord Brandon relied upon the fact that the Order that was made by the Court was made on a reasonable assumption that for \u201can indefinite period to be measured in years rather than months or weeks\u201d the wife and the 2 children of the family would require a suitable home in which to reside.\u00a0 That assumption of course was invalidated when the wife and children died within 5 weeks of the Order.<\/p>\n
The test or principles that were set out by the Court in the Barder case can be summarised as follows:<\/p>\n
In deciding the case of Mr and Mrs Critchell following the death of Mr Critchell\u2019s father, Lady Justice Black commented on how rare it is for a case to actually satisfy the tests set out in Barder.\u00a0\u00a0\u00a0 She made it clear that her decision was not intended to indicate a shift in the legal principles and the test to be applied.\u00a0 \u00a0She stressed that the case of Mr and Mrs Critchell was being\u00a0 decided based purely upon the facts.\u00a0 The inheritance that Mr Critchell was to receive,\u00a0 to which he became entitled very shortly after the matrimonial Court Order was made, would enable him to meet his needs by discharging his debts.\u00a0\u00a0\u00a0 That had been a fundamental change and justified an appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
As divorce lawyers we always advise our clients with confidence that the final\u00a0 financial settlement that they have incorporated into a Court Order \u00a0is exactly that i.e. final. We always have to add that there is some small print however that the chances of their Order being anything other than […]<\/p>\n","protected":false},"author":2,"featured_media":2075,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[335,341],"tags":[427,607,660,668,742],"class_list":["post-3762","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-divorce","category-familylaw","tag-barder-case","tag-critchell-v-critchell","tag-divorce-2","tag-divorce-settlements","tag-family-law"],"yoast_head":"\n