Barder V Caluori
Barder V Caluori
Barder V Caluori
House of Lords
Facts
A consent order was made on the divorce of H and W that W would occupy the
matrimonial home while she brought up their two children. After the time limit to
appeal the order expired, W killed the two children and committed suicide.
Held Lord Brandon of Oakbrook
There is no general rule that, where one of the parties to a divorce suit has died, the
The real question in such cases is whether, where one of the parties to a divorce
suit has died, further proceedings in the suit can or cannot be taken.
Thirdly, the answer to that question, when it arises, depends in all cases on two
matters and in some cases also on a third.
o The first matter is the nature of the further proceedings sought to be taken.
o The second matter is the true construction of the relevant statutory provision or
The question for decision therefore was whether, on the true construction statute,
o the jurisdiction of the Court of Appeal to entertain an appeal out of time by the
wife lasted only so long as the husband was alive and lapsed on his death.
I can see no good reason for putting such a limited construction on the
respect.
Since there is jurisidiction, when can it be exercised?
o Here, the consent order rested upon a fundamental, though tacit, assumption.
The assumption was that for an indefinite period of years, the wife and
the two children of the family would require a suitable.
That assumption was totally invalidated by the deaths of the
children and the wife within five weeks of the order being made
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.
o 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 was 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, it would be