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Setting aside executory orders: a terrible fate for Thwaite?

Sep 29, 2018, 22:02 PM
Family Law, financial remedies, setting aside executory order, Thwaite v Thwaite, Barder v Barder (Caluori intervening), SR v HR [2018] EWHC 606 (Fam)
This article looks at the authority of Thwaite in detail, examines whether it survived the decision in Barder, and considers two recent cases where Thwaite was relied on. It concludes by suggesting that Mostyn J in SR v HR [2018] EWHC 606 (Fam) was right to doubt the correctness of the decision in Thwaite and suggests it is time it was given a decent burial.
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Date : Jul 11, 2018, 05:00 AM
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Family lawyers have long used Thwaite v Thwaite (1981) 2 FLR 280 to argue that the court has the power to set aside or decline to enforce a financial remedy order which remains executory (ie wholly or partly unimplemented) and where it would be inequitable for the order to remain in place or be enforced. Yet this makes no sense. The cure for an unimplemented order is implementation, not tearing it up and going back to square one. This supposed power to interfere with executory orders was unnecessary for the decision in Thwaite. The cases relied on in Thwaite provided no support for it. If it was that simple, we would have no such thing as a Barder event, as the order was executory in Barder v Barder (Caluori intervening) [1987] 2 FLR 480.

Michael Horton's article in the July 2018 issue of Family Law ([2018] Fam Law 884) looks at the authority of Thwaite in detail, examines whether it survived the decision in Barder, and considers two recent cases where Thwaite was relied on. It concludes by suggesting that Mostyn J in SR v HR [2018] EWHC 606 (Fam) was right to doubt the correctness of the decision in Thwaite and suggests it is time it was given a decent burial.
The full version of this article appears in the July 2018 issue of Family Law

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