Move of children does not justify reopening financial order

finances and divorce

Obviously, when a court makes a financial remedies order on divorce it does so having regard to all of the circumstances of the case. In other words, those circumstances dictate the nature of the order that the court makes.

But what happens if there is a change of circumstances shortly after the order was made? Should the court then reconsider its decision? This is actually a huge topic, and there is a substantial body of law covering it – see, for example, my post here on the case of Barder. There are all sorts of changes of circumstances that have been considered in this context, and one cropped up in the case A v B, heard recently by His Honour Judge Edward Hess in the Portsmouth Family Court.

There was a lot going on in A v B, but I am just going to concentrate on one issue, which will become apparent when reviewing the chronology of events that led up to the hearing:

  1. The parties were married in 1992.
  2. They have two children, aged 16 and 15.
  3. The marriage broke down and the parties separated on the 2nd of March 2009. On separation the children remained living with the wife.
  4. Divorce proceedings were issued and the parties were divorced in January 2011.
  5. The parties agreed a financial settlement at a hearing in December 2010, and a consent order was made setting out the terms of the settlement. The terms of the order were slightly complicated, but suffice to say that they were favourable to the wife, including the transfer to her of five of the six properties that the parties jointly owned.
  6. In 2012 the two children moved to live with the husband.
  7. By October 2012 the husband had not signed over his interest in the properties to the wife, and was indicating that he was unhappy with the terms of the consent order. The wife therefore issued an application for a District Judge to sign the necessary property transfer documents, if the husband would not do so. Two of the properties were subsequently transferred to the wife, but the mortgagees refused to release the husband from the mortgages on those properties.
  8. In October 2015 the wife transferred the legal title to those two properties into the joint names of herself and her new husband.
  9. In April 2016 the husband issued an application for the provision in the consent order relating to the transfer of the five properties to the wife to be revoked. He claimed in particular that the move of the children to him represented a change of circumstances sufficient to justify the revocation of that provision.
  10. The application went before Judge Hess on the 3rd of February.

Now, as I have said, there a number of things going on here, but I am going to deal with just the one relating to the children moving to live with the father. As Judge Hess explained, for the husband to succeed with his argument he had to pass the four tests set out in the Barder case I mentioned above:

  1. That the new events that occurred since the making of the order invalidate the basis, or fundamental assumption, from which the order was made: Whilst Judge Hess accepted that, in the right circumstances, the move of home of a child after an order is made could amount to a ‘Barder event’, it was difficult to say that here, as the transfer of the properties had nothing to do with the provision of a home for the children.
  2. That the new events have occurred within a relatively short time of the order having been made: Here, Judge Hess felt that the change of residence of the two children took place beyond the timescales envisaged in Barder.
  3. That the husband’s application should be made reasonably promptly: Judge Hess found that the husband had failed to act reasonably promptly once the children moved to him.
  4. Lastly, that third parties who have genuinely acquired interests in property subject to the order should not be prejudiced: Here Judge Hess found that the wife’s new husband had genuinely acquired interests in the properties, and he would obviously be prejudiced by the order being revoked.

In the circumstances the husband had failed to pass any of the four Barder tests. He also failed to persuade Judge Hess to disturb the consent order on any other basis, and therefore his application was dismissed.

You can read the full report of A v B here.

Photo by Nico Hogg via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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