TW v GC
[2024] EWHC 949 (Fam)
SY v Personal Representatives of the Estate of DY
14 August 2023
[2023] EWFC 280 (B)
Family Court
After a mom died, a court changed an earlier order about splitting their pension. The dad has to pay some money to the children, but gets time to arrange that money, considering he needs to look after the kids alone now.
Key Facts
- •Appeal out of time against a pension sharing order in financial remedy proceedings.
- •Respondent (DY) died prematurely after the order was made.
- •Dispute over £51,480.51 representing DY's share of a pension, payable if the pension sharing order is set aside.
- •Appellant (SY) argues setting aside the order is justified due to DY's death.
- •Respondent's estate argues for a lump sum payment from SY if the order is set aside.
- •Three children (A, B, C) are involved, with C being a minor.
- •DY's will established a discretionary trust for the children.
Legal Principles
Barder principle for setting aside orders: new event invalidating the basis of the order, application made promptly, appeal likely to succeed, no prejudice to third parties.
House of Lords and Lord Brandon's judgment, with a gloss by Mostyn J.
Section 24A(2) Matrimonial Causes Act: considers whether setting aside the order would prejudice the NHS (pension provider).
s.24A(2) Matrimonial Causes Act
Sharing of assets in financial remedy proceedings considers both need and entitlement, even if primarily based on need.
Unger and another v Ul-Hasan [2023] UKSC 12, Smith v Smith [1992] Fam 69
Outcomes
Permission to appeal granted and pension sharing order set aside.
DY's death rendered the basis of the pension sharing order (providing for her retirement income) invalid. The Barder test was satisfied.
SY ordered to pay £51,480.51 to DY's estate.
To compensate the estate for the loss of DY's pension share. Balancing the impact of DY's death on both parties and considering the welfare of the children.
Payment of £51,480.51 deferred for six months from the sale of the former matrimonial home, pending SY securing alternative property or other security.
To allow SY time to find alternative accommodation and provide for Child C, while ensuring the estate receives the funds eventually.
No order for costs.
Court discretion given the tragic circumstances, balancing fairness between the parties, considering SY's financial burdens and his responsibility for the children.