Wetz v Wetz

Capital orders in ancillary relief proceedings are intended to be final. A later change in circumstances will not ordinarily justify reopening them. The Barder principle applies only where a supervening event invalidates the basis or fundamental assumption on which the order was made, in circumstances that are very special and exceptional. Developments which were known or reasonably foreseeable at the original hearing, including a relationship later becoming cohabitation, do not generally satisfy that test. The court must distinguish capital orders from periodical payments, for which subsequent cohabitation may have different consequences. A second appeal may properly proceed where the lower appellate court has failed to identify or apply the established legal principles.

The parties were divorced after separating in 1996. In June 2000, a district judge made a final ancillary relief order requiring the husband to pay the wife £30,000 by instalments, with alternative payment arrangements, and to lodge share certificates. The order was intended to meet the wife’s housing needs and provide a clean break.

The husband obtained permission to appeal out of time. By the time the appeal was heard, the wife had begun cohabiting with a new partner. The circuit judge treated that development as a fundamental change invalidating the basis of the original order, set the order aside, and directed a rehearing. The wife sought permission for a second appeal. The central issue was whether the later cohabitation justified reopening the final capital order.

1. Appeal allowed. Permission to appeal was granted and the circuit judge’s order was set aside. Costs were awarded to the appellant, subject to detailed assessment of the funded appellant’s costs.
2. Per Lady Justice Hale, capital settlements and lump sum orders are intended to be final. The court must make the order on the evidence available at trial, applying the considerations in Matrimonial Causes Act 1973, section 25. An ordinary change occurring after the order does not normally justify reopening it.
3. The categories identified in Cornick v Cornick [1994] 2 FLR 530 were applied. Reopening may be considered where there has been a simple post-order change, material misrepresentation or non-disclosure, or a supervening event invalidating the basis or fundamental assumption of the order. The first category will not normally suffice, and the second requires evidence capable of engaging the relevant principles.
4. The Barder v Calouri [1988] 1 AC 20 principle requires very special and exceptional circumstances. A relationship known at the original hearing, which later develops into cohabitation, is an ordinary and foreseeable development and does not meet that standard. The fact that the parties later established a home together was immaterial to the finality of the capital order.
5. Capital orders differ from periodical payments. Subsequent cohabitation may affect the continuation or amount of periodical payments, although it will not necessarily do so. The circuit judge failed to address and apply these principles correctly. The case therefore raised a proper basis for a second appeal under section 55(1) of the Access to Justice Act 1999.

• Cambridge County Court: District Judge Taylor made a final ancillary relief order requiring payment of a lump sum and a clean break.
• Cambridge County Court, appeal: His Honour Judge O’Brien granted permission to appeal out of time, set aside the order apart from the undertaking concerning share certificates, and directed a complete rehearing.
• Court of Appeal (Civil Division): Permission for a second appeal was granted and the appeal was allowed with costs.