Williams v Lindley

Permission to reopen a financial provision order because of a supervening event depends on whether the event invalidated a fundamental assumption underlying the order, so that an appeal would be certain or very likely to succeed. The permission court should ask whether the order would have been significantly different had the event been foreseen. It should not conduct a premature assessment of the parties’ current finances.

Once permission is granted, the appeal requires a complete reassessment of the parties’ circumstances under section 25 of the Matrimonial Causes Act 1973. The court must consider every relevant circumstance and is not confined by the relief or factual enquiry proposed by the parties.

A consent order gave the wife approximately 70% of the former matrimonial assets, principally because she required capital to provide a home for herself and a child. Within one month she became engaged to the wealthy employer with whom she was living, and she later married him.

The husband applied out of time to reopen the order. Judge Barnett rejected allegations of misrepresentation and non-disclosure. He accepted that a supervening event had occurred but refused permission after comparing updated asset and pension values and concluding that a rehearing was not certain or very likely to produce a different result.

The central issue was whether the permission stage required a comparison of current financial positions or an assessment of whether the supervening event had fundamentally undermined the assumptions on which the original order was made.

1. Appeal allowed by a majority. Lord Justice Thorpe and Lady Justice Smith held that permission to reopen the consent order should have been granted. The wife’s almost immediate engagement destroyed the principal assumption underlying the order: that she required substantial capital to obtain a home for herself and a child. Had that event been foreseen, the order would have been significantly different. The first condition identified in Barder v Barder, [1980] AC 20, was therefore satisfied.
2. At the permission stage, the court should identify the supervening event and determine whether it invalidated the basis of the original order so that an appeal would be certain or very likely to succeed. This enquiry concerns the importance and effect of the event upon the assumptions underlying the original order. It does not ordinarily require a detailed investigation of the parties’ updated financial circumstances.
3. Once permission is granted, Smith v Smith, [1992] Fam 69, requires a complete reassessment of the parties’ current position by reference to all the criteria in section 25 of the Matrimonial Causes Act 1973. The County Court had examined current assets but had not considered future resources, needs, the financial consequences of remarriage or the new husband’s circumstances. That incomplete enquiry could not constitute the required reassessment.
4. The court conducting the reassessment has an independent duty to investigate and balance all relevant section 25 considerations. The manner in which professionally represented parties formulate the proposed relief does not confine that duty. The Court of Appeal lacked the information needed to perform the reassessment itself.
5. Lord Justice Buxton dissented. He considered that the Barder permission test required a prospective assessment of whether the particular rehearing sought was certain or very likely to succeed. Because the husband had limited his proposed relief to an equal division of capital, the judge was entitled to obtain updated valuations and assess that case on a broad basis.
6. The financial application was remitted for rehearing before a district judge in the County Court, subject to the parties first exploring mediation.

1. Court of Appeal (Civil Division): By a majority, granted permission, allowed the appeal and directed that the financial application be reheard before a district judge in the County Court: [2005] EWCA Civ 103.
2. Crewe County Court: Judge Barnett rejected the allegations of misrepresentation and material non-disclosure. He also refused an extension of time to seek a rehearing on the basis of the subsequent event.
3. District Judge: Made the original consent order on 14 November 2002, under which the husband paid the wife £125,000 and the parties achieved an approximate 70:30 division in the wife’s favour.