February Case Law Update 2

This months case summary comes from Lexis PSL.

Goodyear v Executors of the Estate of Heather Goodyear (deceased) [2022] EWFC 96



The proceedings concerned a couple who had married in 1979 and separated in 2017. In January 2021, the applicant (PG) and his former wife (HG) settled their financial remedy proceedings by way of a consent order. The capital was split reasonably equally so that each party received just over £500,000 and there was a pension sharing order in favour of HG in respect of 51% of PG’s Shell pension which had a cash equivalent in excess of £1m. The pension credit so created would have been worth in the region of £600,000. In August 2021, HG died. The applicant applied for the pension sharing order to be set aside. The executors of the estate of HG (the respondents) opposed the application.

The fundamental issue was whether or not the death of HG had invalidated the basis or fundamental assumption upon which the order had been made as was required following the line of authorities following Barder v Caluori[1987] 2 All ER 440 (Barder). The applicant submitted that a pension was intended as a form of income and, upon the death of HG, that income would not be required and could not be utilised. It was further submitted that, if at the date of entering into the consent order, it had been known that HG would die within six months the pension sharing order would not have been made.

The respondents argued that, following all of the pension reforms/freedoms, a pension was not to be considered in any different light to other assets and HG was entitled to the pension sharing order under the sharing principle following a lengthy marriage.

Issues and decisions

Whether the requirements of Barder were made out. The court considered whether: (i) the new events had occurred within a relatively short time; (ii) the application to set aside ought to be made reasonably promptly; (iii) there was no prejudice to third parties; and (iv) whether the death of HE had invalidated the basis, or fundamental assumption, upon which the order had been made.

The new events had occurred within a relatively short time. HG’s death had occurred just over six months after the order had been approved. Barder stated that it was extremely unlikely that the event could be as much as a year after the order and would in most cases be within a few months. The event in the present case had happened within a sufficiently short time to come within the Barder test (see [37] of the judgment).

The application had been made promptly, within one day of HG’s death (see [38] of the judgment).

The respondents did not take any point on the issue of prejudice to third parties (see [39] of the judgment).

Regarding the question of whether the death of HG had invalidated the basis, or fundamental assumption, upon which the order had been made, the starting point would be to assess the basis upon which the order had been made. It had been a consent order and consequently, there was no judgment setting out the rationale behind the order that had been made (see [44] of the judgment).

The thrust behind the pension share had been in order to ensure that the parties had sufficient income during their retirement. If it had been known that HG would not have lived more than six months after the order was entered into, then the same pension share would not have been agreed. It had been the intention of the parties at the time that the order was approved that was important, rather than any intention that had been formulated thereafter (see [51] of the judgment).

Since all of the Barder criteria had been met, the order had to be set aside (see [52] of the judgment).

Barder v Caluori [1987] 2 All ER 440, [1988] AC 20, (1987) Times, 22 May applied

Digest prepared by Toby Frost, Barrister, for Lexis PSL


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