FA-2024-000237 - [2025] EWHC 727 (Fam)

I will take this summarily. HHJ Spinks determined the financial remedy applications between the parties, ancillary to their divorce, by way of a reserved oral judgment on the 14 December 2023, a little under a month after a 3-day final hearing which started on the 15 November 2023. That judgment involved, amongst other things, an uneven division of the proceeds of sale of the matrimonial home because the wife had a significantly higher income and consequently bigger mortgage capacity than the husband. The husband needed more of the proceeds to provide him with appropriate housing. The split, as eventually drafted in the order, was 62.5% in favour of the husband less a sum of £26,500.

On the 3 January 2024 the husband’s father died. By then the order which would have flowed from the judgment had not been perfected. The husband brought an application to the court to oblige perfection on the 29 January 2024, together with an application for him to receive the share of the wife’s bonus that would have been due to him pursuant to the judgment. That was heard on the 12 February 2024. He received the share of the bonus but rather than perfecting the order a timetable was drawn up to lead to perfection.

On the 26 February the wife made an application under the Barrell jurisdiction, in the light of the financial impact of the death of the husband’s father. She accompanied that with an open offer (since withdrawn) in which she indicated that she would settle the matter with an equalisation of the net proceeds of sale of the home less the share of the bonus paid, which would have left the husband with about £70,000 less than the amount due under the original judgment.

Counsel then instructed were unable to find a time when they and the court were all available to hear the Barrell application. By agreement the parties invited the judge to deal with the matter on paper.

He did, in a careful written decision of the 31 May 2024. He rejected the application. It is that decision which is being appealed.

I should further note that probate was granted on the 25 May 2024. That is before the determination of HHJ Spinks but was not known to the judge when he made his determination. That is a source of complaint on the wife’s side. The husband case in response is that (a) his side had sought information from the estate, and provided it to the other side in advance of the determination, (b) the figures in the estate account which they had provided are all but identical (£1 difference) from the figures in the Grant of Probate, (c) that they had provided a clear timetable to the grant, and matters had proceeded more quickly only because the Registry did not have the expected delays, and (d) they did not know about the grant (as the husband is not an executor) until the wife told him of it from the public source.

The information provided by the husband in advance of the hearing before HHJ Spinks included estate accounts, a will, a letter of wishes in relation to a will trust, some pertinent emails from the husband’s father, and a number of emails from the solicitors dealing with the father’s estate explaining the situation.

The wife appealed to this court on the 16 August 2024. The deadline for appealing was the 21 June 2024. She relies on the facts that she did not learn of the grant of probate until the end of June, and that she did not have lawyers acting for her, to explain the delay.

The appeal has been managed by Mr Justice Keehan. I will not repeat his orders except to remark: (a) permission to apply out of time has not yet been granted, (b) permission to appeal has not yet been granted, and (c) there has been since the 7 February 2025 a stay in place bearing in mind the imminence of this hearing. This has been a ‘rolled up’ hearing with each application argued.