The claimant was advised to accept a consent order that his wife should pay him a capital sum in the divorce, but by instalments. The wife later successfully applied to have the sum reduced. He sought to claim against his former solicitors for not advising him of this risk.
Held: The claim failed. At the time there was no reason to anticipate the later circumstances which led to the reduction, and the loss had not been caused by any failure of the defendants, since he would have faced the same risks whatever order had been made.
Bodey J considered the situations in which a court might re-open an order: ‘The reopening under section 31 of the overall quantum of lump sum orders by instalments, especially when made as part of a package intended to be final (and all the more so when ordered by consent following an agreement) should only be countenanced when the anticipated circumstances have changed very significantly, and/or for cogent reasons rendering it quite unjust or impracticable to hold the payer to the overall quantum of the order originally made.
This formulation gives a little more latitude as regards section 31 of the Matrimonial Causes Act 1973 than do the Barder conditions for the grant of leave to appeal out of time; but that must, I think, follow from the statutory requirements under section 31(7) that the court is to consider all the circumstances.’
Bodey J said that the subsection ‘not only empowers the court to re-timetable / adjust the amounts of individual instalments, but also to vary, suspend or discharge the principal sum itself, provided always that this latter power is used particularly sparingly, given the importance of finality in matters of capital provision’.
Bodey J, Schiemann and Sedley LJJ
Gazette 17-May-2001,  EWCA Civ 407,  1 FLR 166,  Fam Law 15,  2 FCR 210
Matrimonial Causes Act 1973 31(3)
England and Wales
Cited – Barder v Calouri HL 1987
In divorce proceedings, the husband transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20th February 1985 and on 25th March an appalling tragedy . .
Approved – Shaw v Shaw CA 31-Jul-2002
Thorpe LJ said it was difficult to see how a failure to disclose assets in ancillary relief proceedings could be both substantial and unintentional.
As to Bodey J’s analysis of the power to vary an award of a lump sum in Westbury: ‘I am in . .
Cited – Myerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
These lists may be incomplete.
Updated: 04 March 2021; Ref: scu.90403