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Application to vary a consent order

  • SummerSun
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05 Feb 08 #12966 by SummerSun
Topic started by SummerSun
Hi, I'm seriously considering applying to the court to vary a Consent Order agree last summer that now looks like it will not be implemented for at least another 12 months.

I'm a bit unsure about whether this is even posisble - so would like to here some views or experiences.

The basic issue is the sale of an second property, which we cannot sell because of structural problems. These have resulted in a £40k reduction in the valuation of the property. All this has come out after the CO was agreed.

My problem is that while the CO is roughly a 60:40 split my ex-wife gets a fixed sum, so she is not bothered about the reduction.


  • attilladahun
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05 Feb 08 #12974 by attilladahun
Reply from attilladahun
Now generally a final order cannot be varied the Court can give directions to implement the order under the liberty to apply provision.

To sucessfully vary you woulkd have to show that the issue of structural problems were never contemplated.....were there any signs then?

Was the property valued in the case....we always tell clients a valuation should be carried out by a chartered surveyor to flush out such problems -never rely on a market appraisal...risk is parties may agree the value.

If that was the case you could argue a mistake and seek a variation under the principles in Barder v Barder.

Warning...must act very quickly after knowledge
and before other party acts on original order to her detriment.

Barder v Barder
In the leading case of Barder v Barder (Caluori Intervening) [1988] AC 20 the House of Lords stated that a court may grant leave to appeal out of time if the following four conditions are met:

1. New events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were … given, the appeal would be certain, or very likely, to succeed.
2. The new events should have occurred within a relatively short time of the order having been made.
3. The application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
4. The grant of leave … should not prejudice third parties who have acquired in good faith and for valuable consideration, interests in property that is the subject matter of the relevant order.

Barder itself graphically illustrates circumstances in which leave might be granted. In that case, by consent the husband was ordered to transfer his interest in the matrimonial home to the wife largely because their two children would reside with her. Shortly after the order the wife killed both children, then committed suicide. However, this extremely uncommon event might have suggested that the discretion to grant leave would be exercised only very exceptionally. Since 1988 the courts have shown a willingness to allow appeals out of time in less extreme circumstances. They have allowed them sometimes in relation to the valuations of businesses and, topically, houses but only where the applicant for leave has applied quickly following a material change in value. Nevertheless, mindful of the enormous benefit of finality in litigation the courts have generally discouraged such applications. Recent cases have demonstrated this (Kean v Kean [2002] 2FLR 28; P v P (Consent Order: Appeal out of time) [2002] 1 FLR 743).

Please supply more details of the facts behind the order and how it was made

Obvious solution is to suggest her fixed sum is reduced by a % new value has against old value.

Court of Appeal has warned solrs the dangers of agreeing fixed sums and a pity this was the case -were you advised of the risks??? Possible negligence issue

Hope this helps

  • SummerSun
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07 Feb 08 #13090 by SummerSun
Reply from SummerSun
Thanks for your comments and advice. No formal valuation was done as there was an offer on the table. Although the property had previously suffered from problems my ex had assured me that these had been resolved.

  • attilladahun
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07 Feb 08 #13095 by attilladahun
Reply from attilladahun
"my ex had assured me that these had been resolved"

OK then it seems you are relying on misrepresentation but the property problems can't be a Barder event really as it is not new and could be said to have been contemplated.

Did you have a solicitor acting....did he/she know of the problems of the property

Recent case here: www.familylawweek.co.uk/library.asp?i=2735

but actually I don't think that will help you

There is a case double barrelled name which strongly warns against drafting fixed lump sum from sale of property will try and find it
I think there may be a negligence issue here..if so you may be bound to see if the Court will vary order anyway (even if unlikely to suceed).

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