Divorce and Recession Part 2: Creditors, Competitors and Bankruptcy

Simon Calhaem Barrister 29 Bedford Row

Part 2 of this article assesses the impact of creditors on the ancillary relief process. To update Part I published in April [2008] Fam Law 301 in the recent decision of Myerson v Myerson (No 2) [2009] EWCA Civ 282 [2009] 2 FLR (forthcoming) the Court of Appeal refused the husband's application to appeal a consent order on a Barder basis as a result of 'the husband's fortune [having] been hit by the earthquake of the global financial crisis'. The decision is based on the following grounds:

(a) the circumstances were a change in asset values will justify a Barder appeal are 'very few and far between';
(b) the order was made by consent;
(c) the consent order was in part speculative (of the husband's own assessment of asset values);
(d) the value of his shares may still go up;
(e) (and most importantly) because the payment of the lump sum was spread over 5 instalments the husband had power to vary the quantum of the unpaid lump sums (see Part I - Asset protection: drafting).

Thorpe LJ held that '... the...

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