Barder v Barder; Barder v Caluori: HL 1988

Later Event no ground to appeal from consent order

The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the wife committed suicide. The husband applied for leave to appeal.
Held: The House described the conditions for appealing an order made by consent. A consent order in an ancillary relief case could be set aside on the ground that there had been a supervening event which had led to such a change of circumstances as to undermine or invalidate the basis of the consent order: ‘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 new events should have occurred within a relatively short time of the order having been made . . the application for leave to appeal out of time should be made reasonably promptly and third parties should not be adversely affected.’ Lord Brandon reviewed the case law and said: ‘I would state the conclusions to which I think that these authorities lead in this way. First, there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it. The passage in the judgment of Shearman J. in Maconochie v. Maconochie [1916] P. 326, 328, in which he stated that such a general rule existed, cannot be supported. Secondly, it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. Thirdly, the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934.’
Lord Brandon
[1988] AC 20, [1987] 2 All ER 440, [1987] 2 WLR 1350, [1988] Fam Law 18
England and Wales
CitedDipple v Dipple 1942
The court considered the abatement of an application for financial relief in divorce proceedings on the death of one party.
Held: The wife’s claim to secured provision was not a cause of action within the terms of section 1(1). The wife only . .
CitedMosey v Mosey and Barker 1956
An order had been made against the husband, upon the dissolution of a marriage, securing an annual sum for the maintenance of the wife and their child that was to be agreed upon or referred to the district registrar. The order envisaged contuation . .
CitedSugden v Sugden CA 1957
The husband died after having had made against him an order to pay maintenance to the two children of the marriage.
Held: The order could not be enforced against his personal representatives after his death. The court explained why a claim . .
CitedD’Este v D’Este; D(J) v D(S) FD 1973
The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was . .

Cited by:
ApprovedS v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
CitedRam, Regina (on the Application Of) v Parole Board Admn 12-Jan-2004
The claimant had won an action for damages against the respondent. He was however released on licence, and subsequently became unlawfully at large. The question was whether the damages continued to be payable to him. The defendant insisted that the . .
CitedMcGladdery v McGladdery CA 21-Jul-1999
A husband having been ordered to transfer his shares in a private company to his wife, found that she had breached the undertaking she had given as part of the order, and had used her majority shareholding to dispose of company assets out of the . .
CitedKelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
CitedMiller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
CitedHarb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
CitedHeyer v Newby CA 19-Oct-2005
The parties had settled their ancillary relief case by consent, but shortly afterwards, shares in the husband’s company were sold creating a very substantial windfall in his favour. The former wife sought to vary the order. The husband appealed an . .
CitedRichardson v Richardson CA 8-Feb-2011
Application was made to vary an ancillary relief order on the basis of a Calouri style change of circumstances. . .
CitedWalkden v Walkden CA 25-Jun-2009
W sought to plead as a Barder event the fact that certain shares had subsequently been sold by H at a substantially higher value than had been anticipated on the making of the financial relief order on the parties’ divorce. Alternatively, she . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.180693