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ANCILLARY RELIEF: Myerson v Myerson (No 2) [2009] EWCA Civ 282

Date:7 APR 2009

(Court of Appeal; Thorpe, Smith and Sullivan LJJ; 1 April 2009)

The parties had reached an agreement during the FDR appointment, whereby the wife was to receive £11 million (43% of the total assets) and husband £14.5 million (57% of the total assets). Under the agreement the husband was to pay the wife a lump sum of £9.5 million in cash, in five instalments. The first instalment of £7 million was duly paid, but following the collapse of the share price in the husband's company, which was related to the global economic downturn, the husband sought to revisit the agreement. He applied for an extension of time, for a variation of the lump sum to be paid and for permission to appeal the consent order. At this stage the husband's share of the former matrimonial assets amounted to only 14%, so that the wife held 86%, but by the appeal hearing the husband had been left with less than nothing. On appeal the husband argued that the drop in share prices had rendered the consent order both unfair and unworkable, and that the relevant events were sufficiently dramatic to constitute new events, within the principles set out in Barder v Calouri (1988) AC 20.

Applying the principles set out by Hale J in Cornick v Cornick (1994) 2 FLR 530, the appeal must fail: there had been no misvaluation or mistake at the trial, but a natural, albeit dramatic change in the value of the husband's shareholding. Natural processes of price fluctuations, however dramatic, did not satisfy the Barder test. Further, the husband, with all knowledge, both public and private had agreed to an asset division, leaving himself in control of the company, certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead. The husband had taken a speculative position in relation to compromising his wife's claims; there was no justification for subsequently relieving him of the consequences of his speculation by re-writing the bargain at his behest. The husband continued to enjoy control of the opportunities that went with the risk. The judge below had the jurisdiction to vary the instalments due in the future, at the judge's discretion; those instalments amounted to £2.5 million, much more than token relief. However, the court did not accept the wife's argument that the new events condition required a concrete new event such as the liquidation of the company: events embraced happenings, developments or occurrences.