Ryan Elliott, Associate Director represented the Wife in a successful High Court appeal against an unfair divorce settlement pursuant to the 1987 Barder principle.
Background to the Northern Ireland Divorce Settlement Appeal
The Husband and Wife were married in 2008 and separated in 2015. Their two children remained in the care of the Wife following separation.
The assets were the matrimonial home, surrounded by 27 acres of farmland, and a further 18 acres of farmland in County Tyrone, all of which were owned and occupied by the Husband.
How the Original Divorce Settlement Valued the Matrimonial Assets
The Husband and Wife were both legally represented in the original proceedings. A joint valuation in late 2019 valued the matrimonial home at £120,000, the 27 acres at £135,000 and the 18 acres at £68,000. This gave the assets a combined value of £323,000.
At the FDR hearing in January 2020, the Master noted that the assets were inherited by the Husband prior to the marriage. It was indicated that the Wife should receive 40% of the equity in the matrimonial home and 30% of the value of the lands. The parties negotiated a Matrimonial Agreement with the Husband to pay a £100,000 lump sum to the Wife within six months. The Master approved the terms of the Matrimonial Agreement and it was made a Consent Order.
Six weeks later, the Husband placed the 18 acres on the open market for sale with a different estate agent. The guide price was £125,000 and the lands ultimately sold for £206,000; achieving three times the valuation relied upon in the proceedings.
How to Appeal an Unfair Divorce Settlement in Northern Ireland
The Wife instructed Cleaver Fulton Rankin in 2022 and leave was sought to appeal the divorce settlement under Order 58 of the Rules of the Court of Judicature (NI) 1980. The appeal was out-of-time and was therefore reliant upon the Court’s discretion to grant leave.
The Wife argued that the sale of the 18 acres for £206,000 invalidated the fundamental basis of the divorce settlement. The Wife relied upon further valuation evidence to demonstrate that all of the lands were undervalued in the original proceedings, leading to an unfair outcome. The Wife argued that the practical reality of the settlement was that the Husband retained assets that were worth significantly more than first thought and that her true matrimonial entitlement had not been realised.
What Is the Barder Principle in Divorce Financial Settlement Appeals?
The leave application was heard before the Honourable Mr Justice Fowler in October 2023.
It was common case that the Wife’s Notice of Appeal was filed out-of-time. The key question was whether the Court should exercise its discretion to grant leave notwithstanding the delay. The Wife relied upon the decision of the House of Lords in Barder v Barder [1987] 2 FLR 480 in which Lord Brandon set out the correct test to be applied in such circumstances:
“…A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied.
The first condition is that 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 to be given, the appeal would be certain, or very likely, to succeed.
The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months.
The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. That fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.”
The Court also heard competing submissions concerning the decisions in Edmonds v Edmonds [1990] 2 FLR 202, Cornick v Cornick [1994] 2 FLR 530, and Heard v Heard [1995] 1 FLR 970.
Why the High Court Found the Original Valuation Was Unsound
Delivering Judgment on 22 March 2024, the Court ruled that the first condition was satisfied due to the fact that the joint valuation exercise relied upon at the FDR Hearing appeared to be unsound, and the Husband’s sale of the 18 acres for £206,000 did amount to a ‘new event’ that invalidated the basis and fundamental assumption upon which the Consent Order was made.
In finding that the second condition was satisfied, the Court noted that the Husband had sold the lands within six weeks of the Consent Order.
How Covid-19 Affected the Wife’s Delay in Bringing the Appeal
In finding that the third condition was satisfied, the Court recognised the Wife’s strenuous efforts to advance an appeal upon discovering the sale price achieved by the Husband. Interestingly, the Court took into account the fact that the events were unfolding during the early days of the Covid-19 pandemic, at a time of great restriction, uncertainty and reduced service accessibility. The Court was satisfied that the Wife had sufficiently proven her difficulties in obtaining documentation and legal representation. The Court accepted that the Wife required legal advice so that she could be informed as to the options available for her to challenge the circumstances that had arisen after the Consent Order was made. The Court considered the chronology lodged on behalf of the Wife and the impact of the pandemic and accepted that the Wife did all that could reasonably be expected in difficult circumstances.
Why the Appeal Did Not Prejudice Third Parties
In finding that the fourth condition was satisfied, the Court noted that no third party would be prejudiced by the Wife’s appeal due to the likely value of the assets retained by the Husband.
High Court Awards a Further Lump Sum in the Divorce Settlement Appeal
The Court duly granted leave for the Wife to appeal and ordered a re-hearing (hearing de novo).
The Husband then sought leave to appeal this decision in the Court of Appeal. However, the Wife successfully argued that the Husband’s attempt to appeal was premature pursuant to Section 35 of The Judicature (Northern Ireland) Act 1978 and the proceedings remained in the Family Division.
The hearing de novo ran with three days of evidence heard in June 2025. Helpfully, the parties’ experts agreed the current market value of the assets in advance of the hearing. Delivering Judgment on 19 February 2026, the Court ordered the Husband to pay a further lump sum of £90,400 to the Wife, comprising 30% of the difference between the current and original valuations of the lands, and effectively realising the Wife’s true matrimonial entitlement.
What This Case Means for Divorce Settlement Appeals in Northern Ireland
Reflecting on the case, Ryan Elliott commented:
“It was a pleasure to represent the Wife in this complex and novel appeal. To my knowledge, this case represents the first published decision in Northern Ireland concerning the Barder principle introduced by the House of Lords in 1987. Our client’s determination in pursuing fairness will provide a precedent for people to challenge the financial outcome of their divorce, including settlement agreements, when future events leave them in an unfair situation.”
The published Judgment granting leave to appeal may be read here.
Case Citation: McG v McG [2024] NIFam 20
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Our team at Cleaver Fulton Rankin can provide you with the specialist advice you need.
Please contact Ryan Elliott in our Private Client Team with any enquiries.
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