X v Y [2025] EWFC 144 (B)

IN CONFIDENCECase No 1662-0279-7639-9790[2025] EWFC 144 (B)
IN THE FAMILY COURT AT TRURO
Date 17 February 2025
Courts of Justice
Edward St
Truro
Before
District Judge Stone
Between
XApplicantYRespondents
Rupert Chapman (instructed by Stephens Scown) for ApplicantChristan Gape (instructed by Vingoe Family Law) for RespondentHearing Hearing date: 12 February 2025Handed down 15 May 2025
JUDGMENTIntroduction
[1]This judgment addresses 2 applications:a. The application brought by the respondent husband Mr X (“Mr X”) to appeal out of time the final order I made in this matter on 1 December 2023 (“the order”). By order of HHJ Mitchell dated 3 January 2025 that application is to be treated as an Application to set aside and/or vary the capital provision contained in the orderb. The application brought by the applicant wife Mrs Y (“Mrs Y”) to strike out Mr X’s application[2]In reality they are two sides of the same coin: Mr X has applied to vary the order which sets out how the net proceeds of sale of a property in Cornwall (“the family home”) should be divided; and Mrs Y resists that application.

The position at final hearing

[3]At the final hearing which I heard on 30 November 2023 the court had the benefit of a jointly obtained expert valuation of the family home dated 26 October 2022. That valued the property at £800,000. Neither party sought to suggest that the expert valuation evidence was unreliable. Neither had asked any Part 25 questions of the valuer.[4]Despite the joint valuation at £800,000, at the date of the final hearing the property was on the market for £895,000. Both parties appeared confident of achieving more than £800,000. The court however ascribed a figure of £800,000 to the family home in accordance with the expert valuation when carrying out its computation exercise.[5]Each party had adopted an open position that would provide Mrs Y with a fixed minimum amount of the proceeds of sale as opposed to a percentage share:a. Mrs Y’s offer dated 24 November 2023 was that the proceeds of sale at a price up to £850,000 should be divided so that she received £475,000 and Mr X the balance; and that any proceeds in excess of £850,000 should be shared equally.b. Mr X’s offer dated 10 November 2023 (set out in his Section 25 statement) was that the proceeds of sale at a price up to £800,000 should be divided so that Mrs Y received £350,000 and he received the balance; and that any proceeds in excess of £800,000 should be paid to him. In short, she would get £350,000 and he would get the balance.[6]So it is that the court made an order that provided Mrs Y with a fixed minimum amount, reflecting the parties’ positions.

The order

[7]The relevant order is at paragraph 17 of the order, which states as follows:
“17. The family home shall be sold forthwith on the open market for sale and the following conditions will apply: a. the property shall be placed on the open market for sale immediately by the parties for such price as may be agreed between the parties or in default of agreement determined by the court; b. the property shall be sold for the best price reasonably attainable in excess of £800,000, such price to be agreed by the respondent alone or in default of agreement determined by the court; c. both parties shall have conduct of the sale; d. such solicitors as may be agreed between the parties or in default of agreement determined by the court shall have the conduct of the conveyancing work relating to the sale; e. The nominated Estate Agents shall offer the property for sale; and f. the proceeds of sale shall be applied as follows: i) to discharge the mortgage; ii) in payment of the solicitors’ conveyancing costs and disbursements iii) in connection with the sale; iv) in payment of the estate agents’ charges; v) in payment to the applicant of the lump sum of £410,000 and in payment of the balance to the respondent less the liability owed to the applicant under the costs orders made by Deputy District Judge Deacon on 12 July 2023 (£3,659.50 plus VAT).”
[8]Paragraph 25 of the order dismisses Mrs Y’s claims for lump sum orders, property adjustment order, pension sharing orders and pension attachment orders; paragraph 26 does likewise for Mr X’s similar claims, and also his claims for periodical payments. The effect of those paragraphs is not conditional on the implementation of any other part of the order.

Events since the date of the order

[9]The family home has not sold. Marketing commenced through the nominated Estate Agents. They have provided a letter dated 15 November 2024, which states that they put the property on the market on 24 October 2023. In accordance with the order Mr X had discretion as to the sale price. Mr X chose to market the house at £895,000. On 24 January 2024 the advertised price was reduced to £850,000. On 15 March 2024 the price was reduced to £825,000. On 27 July 2024 it was reduced to £800,000.[10]The estate agents’ letter states “Given the recent trend of the market (which is slow) in this sector it would be worth considering a further reduction and we could see the value continue to drop in the coming year. A figure of £750,000 would logically be the next marketing price point to try. … It is worth noting that we have an offer for the property from Mrs Z however she does need to sell a property in order to purchase. I have spoken to her this week and although she has had a little more interest in her property recently, does not yet have a buyer. She did say that since offering, more property has come to the market and there are some others that also interest her now.”[11]I am told that the offer from Mrs Z is in the sum of £795,000.

Order now sought

[12]Mr X seeks to vary the capital split of the proceeds of sale. He seeks to vary paragraph 17 of the original order to include the provision that any reduction in the sale price below £800,000 is met equally as between the parties and to allow for a sale at a lower price.[13]Mrs Y rejects any suggestion that the order should be changed to reduce the sum she receives on sale.[14]It is common ground that the court has jurisdiction to vary the sale price set out at paragraph 17b of the order. Were the parties simply to agree such a reduction then no order would be necessary.

Basis of Mr X’s application

[15]Mr X framed his application as an application to appeal out of time against the order. It was the wrong application: having been issued after 6 April 2022 the “new” FPR 9.9A applies, which provides that an application to set aside a financial remedy order “where no error of the court is alleged” should be made by the Part 18 procedure to the court that made the order to be dealt with by the same level of judge that dealt with the original application. It is worth observing that FPR 9.9A clarifies the mechanism to be used when making an application to set aside, but does not give the court any new powers to set aside an order. Paragraph 13.5 of the supporting Practice Direction is careful to state “The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges.”[16]So it is that on receipt of the incorrectly framed “appeal out of time”, HHJ Mitchell ordered that the application be treated as a Part 9.9A application to set aside and/or vary the order, and this application was listed before me.[17]The procedural irregularity might explain why the basis of Mr X’s application only became apparent on the day of the hearing when his counsel filed and served a case summary.[18]Mr X’s application did not identify out the legal doctrine relied upon. His witness statement in support of the application dated 9 December 2024 states “I am seeking permission to appeal out of time against the lump sum order. The position with the sale and fall in the property market is a new event which has occurred since the making of the order on 1st December 2023, and which invalidates the basis on which the order was made.”[19]The language used is reflective an application made under the principles established by the House of Lords in Barder v Calouri [1988] AC 20 . Clearly this is a not a case where a Barder application could succeed because a variation in property price is not a “supervening event”, as per Cornick v Cornick [1994] 2 FLR 530 the property market fluctuates and prices go up and down, so such variation could not be unforeseeable and the Barder conditions are not satisfied.[20]The understanding that Mr X was making a Barder application doubtless led Mrs Y to make her application to strike it out: if it was a Barder application then it was hopelessly flawed.[21]However, when shortly before the hearing his counsel’s case summary was received it became apparent that he was not (or perhaps was no longer) relying on Barder, (and accepted that he could not successfully do so) but was invoking the “Thwaite Jurisdiction” established in Thwaite v Thwaite [1981] 2 FLR 280 . The case note from his counsel Mr Gape states as follows: “In this case the order remains executory as the order for sale is yet to be implemented – and in reality will remain so because the requirement to sell for more than £800,000 cannot seemingly be achieved. As held in Kicinski v Pardi [2022] 1 FLR 474 the Thwaite jurisdiction provides that the Court may set aside one of its orders if i) it remains executory, ii) there has been a material change of circumstances, and iii) it would be inequitable not to vary the order It is noted that unlike set aside based on Barder events etc the change in circumstances does not need to be ‘wholly unforeseen’.” i) it remains executory, ii) there has been a material change of circumstances, and iii) it would be inequitable not to vary the order[22]Those submissions caught Mrs Y’s counsel Mr Chapman on the hop: his case note did not deal with the Thwaite jurisdiction at all. The result was that the time allocated for the hearing was barely sufficient to receive oral submissions concerning the jurisdiction now relied upon, and left no time for judicial consideration or to give judgment. I was compelled to reserve judgment.

The arguments before me

[23]I can summarise the arguments before me as follows:[24]Mr X argues that:a. The order is executory because the house has not been soldb. The reduction in value of the house represents a significant change. The Thwaite jurisdiction does not require the change to be unforeseeable.c. The court set a minimum sale price and determined the division of capital on that basis. In light of the significant change it would be inequitable not to vary the order and the impact on Mrs Y would be minimal.[25]Such an argument is premised on the assertion that the Thwaite jurisdiction is available to the court in the current circumstances; that the court should exercise that jurisdiction; and that the Thwaite jurisdiction enables the court both to set aside the current order and then to replace it with a different order. Specifically Mr Gape referred me to the case of Kicinski v Pardi [2021] EWHC 499 (Fam) . He characterises the decisions made by Mostyn J (see below) that question the existence of the jurisdiction as outliers.[26]Mrs Y’s counsel Mr Chapman argues as follows:a. He questions whether the Thwaite jurisdiction still exists. He referred me to the case of BT v CU [2021] EWFC 87 in which Mostyn J questions whether that jurisdiction has survived Barder. He says that the House of Lords in Barder was referred to Thwaite. It chose not follow it but to impose a higher test.b. In any event, if the Thwaite jurisdiction exists then the conditions to exercise that jurisdiction are not met because i) The change is not significant: it is a minor variation in valuation because if the property sells for less than £800,000 then any reduction in the sum received by Mr X is mitigated by the fact that the mortgage Early Redemption Penalties are now through passage of time no longer payable: on the original figure of a sale at £800,000 Mr X would receive £104,187; now on a sale of £795,000 he would receive £134,961 (ie an increase); on a sale at £750,000 he would receive £91,311.60 – a reduction of around only £13,000 ii) It would not be inequitable to retain the existing

The law

[27]It is common ground that Barder has no applicability here. It is not relied upon.[28]It is the existence (or otherwise) and the extent of the Thwaite jurisdiction that requires exploration. Specifically there are 3 questions I must answer to establish a legal framework to which I can then apply the facts of this particular case:a. What are the conditions that must be fulfilled to rely upon the Thwaite jurisdiction?b. What does it enable the court to do?c. Does the jurisdiction even exist – ie has it survived Barder?[29]It will quickly become apparent to counsel that in trying to answer those questions I have referred to cases to which they did not refer me in submissions. I will therefore provide counsel with the opportunity to make further representations in light of those additional cases if required.[30]This judgment is not intended to be a treatise on the Thwaite jurisdiction – I leave that to many more qualified than I am. However, the authorities and commentaries are inconsistent and it is difficult to pin down the existence and extent of the Thwaite jurisdiction without methodically reviewing the authorities, so needs must.[31]There are only two reported Court of Appeal cases that properly address the Thwaite Jurisdiction. The first is Thwaite itself.

Thwaite v Thwaite

[32]In Thwaite the parties had agreed a consent order transferring a house in Exeter to the wife on the understanding that she would return from Australia to live in it. It was a term of the order that the parties’ claims would only stand dismissed on implementation of the transfer. She did move back to Exeter, only within a couple of months to move back to Australia where she set up home. The husband therefore refused to transfer the house to her. She applied to enforce the transfer order; and he applied to vary that order. At first instance the registrar made an order requiring the husband to execute the transfer into the wife’s name. He appealed against that order and succeeded: the first appeal judge refused the wife’s enforcement application on the basis that the wife had never really moved back from Australia, which undermined the whole basis of the order.[33]The Court of appeal judgment states “The judge might have left the matter there because under the consent order of April 30, 1979, the dismissal of the wife's application for ancillary relief took effect only from the date of the conveyance. It was open to her to restore her application immediately or later. But he, not unreasonably, thought that this state of affairs was unsatisfactory, particularly because he concluded that the die was cast, and that the children's future now lay in Australia and that the circumstances under which the order had been made had wholly changed. A curious situation then arose. The judge proposed to make a new order in favour of the wife. The husband consented but the wife refused to agree to his doing so. Notwithstanding the wife's refusal, he decided to proceed…”[34]She therefore appealed to the Court of Appeal. Ormerod LJ gave judgment and said as follows:
“Where the order is still executory, as in the present case, and one of the parties applies to the court to enforce the order, the court may refuse if, in the circumstances prevailing at the time of the application, it would be inequitable to do so: Mullins v Howell (1879) 11 Ch D 763 and Purcell v F C Trigell Ltd [1971] 1 QB 358, 366, 367. Where the consent order derives its legal effect from the contract, this is equivalent to refusing a decree of specific performance; where the legal effect derives from the order itself the court has jurisdiction over its own orders: per Sir George Jessel MR in Mullins v Howell (1879) 11 ChD 763, 766. We do not think that the references to “fraud or mistake” in Lord Diplock’s judgment in de Lasala v de Lasala [1980] AC 546 were intended to confine the powers of the court in these respects, in regard to orders based on consent, within narrower limits than those which apply to non-consensual orders.”
[35]That passage establishes as follows: The court may refuse to enforce an order wherea. The order is executory (ie has not yet been implemented)b. It would be inequitable to enforce itc. It does not matter whether it is an order made by consent or otherwise[36]That passage does not give rise to any jurisdiction enabling a court to go further than simply refusing to enforce an order. Specifically, it does not give the court any jurisdiction to vary the order. It can say “no”; that is all.[37]However, it is clear that on the facts of that case the court, having refused to enforce the existing transfer order, did have the power to go further and make a new different[38]The Court of Appeal could not have been clearer: the jurisdiction to vary the order arose not from any of the two conditions – ie that an order is executory and it would be inequitable to enforce it – but because the wife’s application for financial provision had not been dismissed and was still live before the court.

Bezeliansky v Bezelianskaya

[39]The other relevant Court of Appeal judgment is Bezeliansky v Bezelianskaya [2017] EWCA Civ 76 . Strictly in accordance with Practice Direction (Citation of Authorities) [2001] 1WLR 1001 it cannot be a binding authority because it was limited to an application for permission to appeal. However, it is of persuasive value: the judgment was given by the now President of the Family Division, and it has been referred to in several subsequent authorities.[40]As with Thwaite, that case concerned an order made by consent that contained provision for property transfer; and as with Thwaite it was a term of the order that upon transfer of the properties and division of other smaller capital matters provided for in the order, there was to be a clean break between the parties; and as with Thwaite those transfers had not taken place.[41]At first instance Moor J was clearly aware of the conditional nature of the clean break arrangement that would only dismiss the parties’ claims for financial provision upon implementation of the property transfers. He said “I am quite satisfied that I have that jurisdiction. It is right, in fact, to note that the clean break only takes place once there has been compliance with all of the orders that were made by Holman J, so in one sense there is still jurisdiction in any event to make an order under s 24(a) for a sale of the French property. But, I am equally satisfied that pursuant to Thwaite v Thwaite [1982] Fam 1, a decision of the Court of Appeal, an executory order can be varied in the way that Mr. Chamberlayne invites me to do.”[42]That factor was also clearly at the forefront of the Court of Appeal’s mind when MacFarlane LJ specifically pointed out as follows:
“31. …the husband submits that Moor J was wrong in his interpretation of the case of Thwaite v Thwaite (1981) 2 FLR 280. It is submitted that that authority dealt solely with the court’s jurisdiction to opt to refuse to enforce a consent order and that it is not authority in relation to there being any jurisdiction to set the original order aside. … 34. For some reason the appellant’s skeleton argument does not, however, reproduce paragraph 3 of the head note recording what the Court of Appeal “held” in Thwaite, which reads as follows: “that, although the judge was in error in considering that he had jurisdiction to vary the consent order under the liberty to apply, he had jurisdiction to hear the husband’s appeal against the consent order and set it aside on the basis of the fresh evidence that the wife had no intention to make a home for herself and the children in this country; that the judge also had jurisdiction to make the orders for ancillary relief, despite the wife’s refusal to consent to such a course, because her original application for ancillary relief was still before the court and awaiting adjudication.”
[43]It was having pointed out that particular fact that “37. It is plain to me that Moor J was entirely correct in holding that the authority of Thwaite v Thwaite to the effect that “an executory order can be varied in the way that Mr Chamberlayne invites me to do” was entirely sound and the appellant’s submission that the judge was wrong in his interpretation of this authority is completely unsustainable.”[44]When therefore the Court of Appeal approves Moor J’s decision to vary the order (rather than simply to refuse to enforce it), it does so having laboured the point that in the context of that case there was still a live application before the court to be determined because, as in Thwaite, the conditions that would dismiss the parties’ claims for financial provision had not been fulfilled.[45]At paragraph 38 McFarlane LJ says “With respect to cases where there is an undertaking or an order that is still executory the approach to determining whether or not to set aside or vary the order is, as the appellant submits, based upon it being inequitable to hold to the terms of the original order in the light of a significant change of circumstances. Given that this is a case about an executory order, it is not necessary to engage any further with the Appellant’s wider submission regarding the test where the jurisdiction may arise in other circumstances. In any event I agree with Mr Chamberlayne that the circumstances justifying intervention are likely to be met where an order remains executory as a result of one party frustrating its implementation.”[46]Bezeliansky does not therefore seek to suggest that the court has any jurisdiction to vary an order where the parties’ claims for financial provision have been dismissed and there is no live application before the court. The position remains that there are two conditions: the order must be executory; it must be inequitable to hold to the terms of the original order. It refers to the need for a significant change of circumstances and that one such circumstance may be that one party frustrates implementation of the order. The reality is that those factors will form part of the court’s consideration of inequity: it is hard to think of a conclusion that it has become inequitable to enforce an order unless there has been a significant change of circumstances.[47]There is then a series of High Court decisions which also bind me as a District Judge.

L v L

[48]L v L [2006] EWHC 956 (Fam) was a decision of Munby J, who states at paragraph 66 as follows:
“66. In Benson v Benson (deceased) [1996] 1 FLR 692 at page 696 Bracewell J described the principle as being that: “the judge has an inherent jurisdiction to make a fresh order for ancillary relief where the original order remains executory if the basis upon which it was made has fundamentally altered.”
I respectfully agree.” “the judge has an inherent jurisdiction to make a fresh order for ancillary relief where the original order remains executory if the basis upon which it was made has fundamentally altered.”[49]In L v L the court had approved a consent order submitted by the parties. The consent order provided for an immediate dismissal of the wife’s claims for lump sum, pension sharing and property adjustment orders; and likewise for those of the husband in addition to dismissal of his claims for periodical payments. The wording of the consent order is set out at the end of the judgment. It is clear that dismissal of those claims was (unlike in Thwaite and Bezeliansky) not conditional on implementation of any property transfer.[50]Also unlike Thwaite and Bezeliansky, there had been no change of circumstance. Neither party was suggesting that there had been a change of circumstance. Rather, the husband was asserting that he should be released from an order entered into as a result of bad legal advice. Munby J says “94. I can start by clearing the ground. There is not — there cannot be — any suggestion that circumstances have changed in any material respect since the consent order was made….. This is not the case of an unexpected supervening event. It is, if it is anything, a case where, as the husband would have it, there was a flaw in the trial process. It follows, therefore, and for reasons which I have already explained, that the husband cannot rely upon either Barder v Caluori [1988] AC 20 or Thwaite v Thwaite [1982] Fam 1”[51]It follows that the references to Thwaite (other than to remind himself that Thwaite is also authority for the proposition that once a consent order has been approved the order takes its effect not from the agreement but from the order itself) are obiter dicta.[52]It is not therefore authority for the proposition that “the judge has an inherent jurisdiction to make a fresh order for ancillary relief where the original order remains executory if the basis upon which it was made has fundamentally altered”; and in fact the passage he quotes from Benson is simply extracted from a part of the judgment in Benson that summarises one of the party’s submissions; it is not reflective of the court’s decision in that case.

SR v HR

[53]SR v HR [2018] EWHC 606 (Fam) was an appeal from a circuit judge heard by Mostyn J sitting in the High Court. On appeal from a District Judge at first instance, a circuit judge had identified that orders for financial provision were executory, and had replaced them with a new order pursuant to the Thwaite jurisdiction. The husband appealed.[54]Mostyn J states “9. However, it is an iron rule that aside from a lump sum payable by instalments, and aside from a set aside on traditional grounds as discussed below, a capital award cannot be varied, or, a fortiori, discharged, by a court of first instance. That an order has, in the usual way, a “liberty to apply” clause certainly does not entitle a court to rewrite non-variable capital awards and to make different ones. Equally, the fact that a dismissal clause does not take effect until there has been full compliance with certain transfers and payments plainly does not entitle a court to replace an executory order with a new one. The judge referred to the decision of Thwaite v Thwaite [1982] Fam 1. In a recital to an order made on 13 July 2016 he stated:
“In accordance with the authority of Thwaite v Thwaite the court may consider the order and refuse to enforce the order if it is inequitable to do so. Where such an outcome is determined it is open to the court to determine the matter afresh” 10. I have to say that I do not agree with this.” “In accordance with the authority of Thwaite v Thwaite the court may consider the order and refuse to enforce the order if it is inequitable to do so. Where such an outcome is determined it is open to the court to determine the matter afresh”
[55]He carried out a review of the caselaw referred to in Thwaite itself and concluded “12. …this gives no support to the notion that if the court, exercising its equitable jurisdiction, refuses to enforce an order it gains the power to make a completely new one…. 13. … Therefore, I think that any application under the principle in Thwaite should be approached extremely cautiously and conservatively.”[56]It is not clear from the judgment whether the parties’ claims had been dismissed, but it is notable that Mostyn J appears to state that even where claims have not been dismissed and are still live before the court “the fact that a dismissal clause does not take effect until there has been full compliance with certain transfers and payments plainly does not entitle a court to replace an executory order with a new one”[57]Such a view is at odds with the authority of Thwaite itself, which is a binding Court of Appeal decision.

US v SR

[58]In US v SR [2018] EWHC 3297 (Fam) Roberts J was faced with an immensely complex procedural history and two litigants in person who had each issued multiple applications. Her first words in judgment are that “This matter has a lengthy and depressing history…”. She was tasked with attempting to unplait an order made over 3 years beforehand which as a result of steps taken by each party was simply no longer workable.[59]I suspect that it was the need to find a way of revisiting the original order that led her to seize the lifeline offered to her by pro-bono counsel for the husband in the form of the Thwaite jurisdiction. The order was unimplemented and therefore executory.[60]She rejected Mostyn J’s conclusions in SR v HR because it failed to take account of Bezeliansky and L v L. She relied upon the Court of Appeal decision on leave to appeal in Bezalainsky. She quoted the sections of that judgment that include the words “…jurisdiction arose, not from the liberty to apply as he held, but from the fact that the wife’s original application for ancillary relief was still before the court and awaiting adjudication. It had not been dismissed since the conveyance had never been executed, so that that part of the order …, by which her application was dismissed, had never come into effect.”. She did not identify whether in the case before her the financial provision application had been dismissed or not.[61]I suspect that her decision to replace the original order with a fresh one was driven by practical necessity rather than jurisprudence. As she says at paragraph 56 “It is essential in this case that steps are now taken to resolve the current impasse. For the reasons explained above, I have reached the clear conclusion that I have jurisdiction in this case to revisit the terms of the mainframe order which I made in 2015. I accept, following SR v HR, that any such revision must be contained and, so far as possible, should reflect the underlying intention of the original extraction route embodied in the 2015 mainframe order. That is a jurisdiction which I am exercising with the consent of both parties although I do not need such consent in order to exercise it. It is a jurisdiction which flows both from the Thwaite principle (contained, as explained above) and from the jurisdiction conferred on the court pursuant to the FPR 2010.”[62]I infer from that that she obtained the consent of the parties effectively to start again, and that this case turns very much on its own peculiar facts. It is probably an example of highly practical judge-craft rather than an authority that is more widely applicable.

BT v CU

[63]BT v CU [2021] EWFC 87 was a decision of Mostyn J. It was not a case that concerned an application made to invoke the Thwaite jurisdiction, but concerned a Barder application when a husband applied to set aside an order in light of the mischief created by the Coronavirus lockdowns. It follows that Mostyn J’s comments regarding the Thwaite jurisdiction are obiter dicta. He said “In Thwaite v Thwaite [1982] Fam 1, Ormrod LJ identified two routes to extinguish the lump sum order made in that case. First, in a harbinger of the later case of Barder [1988] AC 20, the lump sum order could be set aside on an appeal out of time in reliance on fresh evidence which destroyed the basis of that order. Second, the court could refuse to enforce the unpaid lump sum order, as it was executory. 44 Thwaite was cited to the Judicial Committee of the House of Lords in Barder and is referred to in Lord Brandon’s speech (at p 40) on a different point namely as an authority for the proposition that the legal effect of a consent order derives from the order itself and not the underlying agreement. 45 The first route must now be seen as being superseded by the decision in Barder, which propounded a much stricter test for the grant of leave to appeal out of time. The first route in Thwaite did not incorporate the requirement of unforeseeability; nor did it have the one-year limitation period. 46 As for the second route, it must be strongly emphasised that in Barder itself, Lord Brandon observed at p 29 that the order under appeal was executory. Yet, fully aware of the decision in Thwaite, the Committee did not decide the case by reference to that doctrine. I agree with Ms Kisser that the Committee must be taken as having impliedly rejected this route as a legitimate source of relief.”[64]Whilst not directly relevant to the issues before me, perhaps it is no surprise that the judgment in Barder did not decide the case by reference to the Thwaite jurisdiction: in Barder the parties’ claims had been dismissed and there was no “live” application before the court; and the House of Lords did not limit itself to cases that were executory. That doubtless explains the more stringent conditions placed around the Barder jurisdiction (must be made promptly; must be unforeseeable; must not prejudice third parties who have acquired in good faith and for valuable consideration interests in the property subject to the application). That is not to say that the House of Lords was tacitly disapproving of the Thwaite jurisdiction; but the circumstances of Barder meant that Thwaite was not an available source of relief.

Kicinski v Pardi

[65]The most recent reported High Court authority is Kicinski v Pardi [2021] EWHC 499 (Fam) . Lieven J heard an appeal against a refusal by a first instance judge to vary a Rose order to include an indemnity for the wife’s benefit. The first instance judge had concluded that the order was executory, but had held that there was no change in circumstances and that it would not be unfair to hold the wife to the terms of the order. He had therefore dismissed her Thwaite application.[66]Lieven J analysed the case law and the applied the Thwaite jurisdiction as follows:
“47. …the first question in deciding whether to exercise the Thwaite jurisdiction is whether there has been a significant (and necessarily relevant) change of circumstances since the order was entered into; and the second question is whether, if there has been such a change, it would be inequitable not to vary the order. For myself, I do not find the words ‘cautious’ and ‘careful’ particularly helpful. There are two requirements to the use of the jurisdiction and their application will ensure that the Thwaite jurisdiction is used with care. There is no additional test or hurdle set out by the Court of Appeal in Bezeliansky which is the case that binds me. … 56. The next issue, under Thwaite is whether it is inequitable to vary the order in the way sought.”
[67]He reached the view that the judge was wrong to find that there was no change of circumstances and that it was “inequitable not to vary the order as sought”.[68]It is apparent that he considered himself bound by the Court of Appeal’s refusal of permission to appeal in Bezeliansky. He did refer himself to (and quote from) the relevant passage in Thwaite that “jurisdiction arose, not from the liberty to apply as he held, but from the fact that the wife’s original application for ancillary relief was still before the court and awaiting adjudication” but did not consider the applicability of that passage to the situation before him. He appears to have conflated the issue of a decision to refuse to enforce an order with a decision to vary an order, but does not explain his thinking on that point.[69]To the extent that his judgment is at odds with the Court of Appeal authority of Thwaite, I defer to the higher court’s approach.

The resulting position

[70]The resulting position appears not to have moved on greatly from Thwaite itself.a. What are the conditions that must be fulfilled to rely upon the Thwaite jurisdiction? There must have been a change of circumstances that would render it inequitable to hold one party to the financial provision order that has not yet been implemented (ie is executory). By definition a minor change in circumstances would not be sufficient to render it inequitable to hold a party to it, so it is inherent that the change of circumstances must be significant. Where the change of circumstances has been brought about by the other party’s inappropriate conduct, that also may point towards inequitability. It is not necessary for the change to be unforeseeable. Indeed, in some cases where a party has conducted themselves badly throughout the process, an attempt to frustrate the implementation of an order may be as foreseeable as it is inequitable.b. What does it enable the court to do? It enables a court to refuse to enforce the relevant provision of the order if to do so would be inequitable. Whilst some of the High Court decisions appear to conflate the issues of refusal to enforce with an ability to alter the order, the basis for asserting that the court has a general jurisdiction to alter the order is unclear. It appears to arise from the fact that in Thwaite the court did vary the order, but it did so only because the parties’ claims remained live before the court and had not been dismissed.c. Does the jurisdiction exist – ie has it survived Barder? Despite the best efforts of Mostyn J to interpret the House of Lords’ silence regarding Thwaite in the subsequent Barder judgment, there is no doubt that the jurisdiction continues to exist. If it had not survived the Court of Appeal would not have referred to it in the Bezeliansky permission to appeal decision.

The position before me

[71]If my analysis above is correct, then were I to conclude that a reduction in the value of the family home was a sufficiently significant change to render it inequitable to hold Mr X to the current order, I could refuse to enforce that part of the order. I would nevertheless have no jurisdiction then to vary the order.[72]The reason is straightforward: Mrs Y’s capital claims and Mr X’s capital and periodical payments claims have been dismissed. The dismissal of those claims was not conditional upon the implementation of the property transfer: it was immediate. Accordingly the conditions in Thwaite that enabled the court to vary the order (from the fact that the wife’s original application for ancillary relief was still before the court and awaiting adjudication - it had not been dismissed since the conveyance had never been executed) do not exist here. The parties’ claims have been dismissed and are not live before the court, such that there is no ongoing jurisdiction to determine them.[73]Whether I am correct about that or not, in the context of this case I do not in any event consider that the reduction in value of the family home is a sufficiently significant change to render it unfair to hold Mr X to it:a. First, whilst I acknowledge that my order provides Mrs Y with a fixed sum as opposed to a percentage share that would be self-varying, that is the model of order that both parties sought at final hearing. Mr X’s position was that he was content for Mrs Y to receive a fixed lump sum, and he would take the risk (or reap the benefit) if the house sold for less (or more). Further, his own open position was that the proceeds of sale at a price up to £800,000 should be divided so that Mrs Y received £375,000 and he received the balance; and that any proceeds in excess of £800,000 should be paid to him. The formulation of his own offer would have meant that he stood to lose if the property sold for less exactly as he does now; yet now he says that such an outcome is inequitable.b. Second (and in a similar vein), whilst Mr X may consider it unfair that if the property price drops he receives less and Mrs Y does not, that must be put into context: if the property had sold for £875,000 (or even more than that) then he would have benefitted entirely from the sum above £800,000. He took both potential risk and potential benefit.c. Third, there is no evidence before the court that the house will sell for only £750,000. There is a letter from estate agents, but no updated expert evidence. The information for the court to conclude that the property is worth significantly less than £800,000 is simply not before the court. Whilst Mr X states that there was a fall in the property market shortly after the final hearing, there is no evidence of that before the court and the news might come as something of a surprise to those in Cornwall who keep an eye on property prices or who look at the Land Registry House Price index for Cornwall.d. Fourth, the letter from the estate agent confirms that the property is under offer from a buyer at £795,000, just £5,000 below the valuation used at final hearing. It may be that the particular buyer cannot currently proceed, but if the best evidence of property values is what someone is willing to pay then the evidence Mr X has put before the court is that it is worth £795,000. That cannot be a significant change that would render it unfair to hold him to the order.e. Fifth, the result of the delay in a sale completing is that the Early Redemption Penalty period has elapsed. On a sale at £795,000 Mr X would now receive more than the figures upon which the judgment was based. As Mrs Y’s counsel points out, were the property to sell for only £750,000 then Mr X would only receive £13,000 less than had been foreseen. Again, such a reduction is not so significant as to render it inequitable to hold Mr X to the order.f. Sixth, this is not a case where Mrs Y is alleged to have conducted herself in a way that has led to an inequitable situation arising.g. Seventh, in the absence of any evidence that house prices have reduced sharply, it would be no more inequitable to Mr X to hold him to the order than it would be to Mrs Y to give her less than the court concluded she needed in order to rehouse herself and the children.[74]Taking account of all of those factors, Mr X’s variation application is dismissed.[75]At the conclusion of that lengthy judgment I recognise that I have barely referred to Mrs Y’s application to strike out Mr X’s variation application. No mention of her application was made at the hearing. I suspect that is a consequence of what appears to be a formulation of Mr X’s application and his reliance of Thwaite only becoming evident hours before the hearing: Mrs Y was rather wrong-footed and her application was overtaken by events. I therefore make no order on Mrs Y’s application to strike out Mr X’s variation application.[76]There is one variation to the order required and which I do have jurisdiction to make because section 24A(2) of Matrimonial Causes Act 1973 empowers the court to make an order for sale that “may contain such consequential or supplementary provisions as the court thinks fit:”[77]Paragraph 17 b of the order currently reads as follows:
“the property shall be sold for the best price reasonably attainable in excess of £800,000, such price to be agreed by the respondent alone or in default of agreement determined by the court;”
[78]That is now varied to read as follows:
“the property shall be sold for the best price reasonably attainable in accordance with the selling agent’s written recommendation, such price to be agreed by the respondent alone or in default of agreement determined by the court;”
[79]I will hear submissions as to the principle of costs at the handing down hearing. Suffice it to say at this stage that I am working on the basis this application has not been in relation to Financial Remedy Proceedings as defined in FPR 28.3, and that therefore neither the presumption contained in CPR 44.2 nor the no order for costs principle applies.

District Judge Stone

order

many of the cases concerning Thwaite jurisdiction consider whether the one party has caused the significant change by acting inequitably; but there is no suggestion that Mrs Y has done anything of such a nature and so the court should be very cautious about exercising its discretion here. The law order: “The judge was entitled, in his discretion, to make a new order for ancillary relief in favour of the wife, notwithstanding the refusal of the wife to consent to his doing so. His jurisdiction arose, not from the liberty to apply as he held, but from the fact that the wife’s original application for ancillary relief was still before the court and awaiting adjudication. It had not been dismissed since the conveyance had never been executed, so that that part of the order of April 30, 1979, by which her application was dismissed, had never come into effect. We think that the judge correctly exercised his discretion in this respect.’”