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Re-opening a final order in divorce proceedings

The occasions upon which a final order may be reconsidered of always been very few. Usually a new and extremely unlikely event needs to have arisen after the order which totally invalidates the original basis of the order.

In the case of Critchell the Court of Appeal has recently looked at a situation in which just such an event had arisen. The parties had agreed an order in which the wife received the house but the husband retained an interest in the property secured by a charge equivalent to 45% of the equity. Only a month after the order the husband’s father passed away leaving him an inheritance that approximately doubled the family assets.

The court found that this was a new event that (i) invalidated one of the fundamental assumptions that led to the original order; (ii) the new event had arisen within a very short time of the order; (iii) the application for leave to appeal was made promptly; and (iv) no 3rd party rights would be affected. The court felt the husband no longer needed to retain an interest in the property. Although the inheritance was not a “matrimonial asset” it was a financial resource that one of the parties was likely to have in the foreseeable future and was therefore able to be taken into account in deciding the correct outcome of the case. It was important that the inheritance had doubled the assets which enabled in order to be made that met the parties’ needs and severed a link between them.

It remains the case that in order to meet the public policy requirement of finality in litigation there are comparatively few situations in which an order may be reopened. However the case confirms that an inheritance of the right size in the right circumstances is clearly capable of being taken into account even when it is not a conventional “matrimonial asset”.

Added: 20 Oct 2015 15:36

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