Nasim v Nasim

Permission to appeal in financial remedy proceedings may be granted where the proposed appeal has a real, rather than merely fanciful, prospect of success. The test does not require a 50/50 prospect, but remains discretionary and may be refused where costs would be disproportionate.

A financial order may be reopened following a subsequent event which falsifies the assumptions underlying the order, provided the event occurred soon afterwards, the applicant acted promptly, and no innocent third party would be prejudiced. Subsequent remarriage does not itself constitute such an event, save potentially where a settled intention to remarry was fraudulently concealed when the order was made.

The husband sought permission to appeal against a financial remedy order made by Deputy District Judge Butler on 25 November 2014 following the parties’ divorce. The order required the matrimonial home to be sold and divided the net proceeds approximately 70 per cent to the wife and 30 per cent to the husband, principally because the children were expected to live mainly with the wife.

After the order, an incident led to criminal proceedings against the wife. The children subsequently lived entirely with the husband. The central issue was whether those later developments arguably falsified the assumptions underlying the original order so as to constitute a Barder event.

1. Permission granted. The husband was granted permission to appeal against the order of Deputy District Judge Butler.
2. Under rule 30.3(7) of the Family Procedure Rules 2010, permission may be granted where the appeal has a real prospect of success or there is another compelling reason. No other compelling reason arose. A real prospect of success is less than a 50 per cent prospect, but must be realistic. The discretion to refuse permission remains, including where the likely costs would be disproportionate.
3. The principles in Barder v Barder (Caluori intervening) provide that a financial order may be reopened where a subsequent event falsifies the assumptions on which it was made so that an appeal would almost certainly succeed, the event occurred soon after the order, the applicant acted promptly, and innocent third parties would not be prejudiced.
4. On the evidence available at the permission stage, the children’s change of residence shortly after the order arguably falsified the central assumption that they would spend about 70 per cent of their time with the wife. The husband’s prompt challenge and the absence of third-party prejudice also made the proposed appeal realistically arguable.
5. The original order was impeccable on the facts existing when it was made. The wife’s subsequent marriage would not itself constitute a Barder event. A possible exception would arise if a settled intention to remarry had been fraudulently concealed at the time of the order.
6. The substantive appeal was not determined because the wife had not been given an opportunity to be heard. The matter was listed for directions before a Family Division judge, with both parties and any instructed lawyers directed to attend. The court strongly encouraged settlement because the further costs and delay would be disproportionate to the amount realistically in issue.

• High Court (Family Division): Permission granted to appeal against the financial remedy order made by Deputy District Judge Butler on 25 November 2014. The substantive appeal was listed for directions and was not determined.