Inheritance and divorce

A man has lost his share in his former matrimonial home because he received a legacy of £180,000 from his father's estate just after he separated

Anthony and Charlotte Critchell separated in 2001 after a nine year marriage.

Mr Critchell is a self-employed painter and decorator on a low income and pays child maintenance for the two children of the marriage.

Following the separation Anthony Critchell bought a house using a loan of £85,000 from his father and a mortgage of £63,000.

The only significant matrimonial asset was the family home with equity of about £175,000. The agreed consent order on divorce was based on the needs principle rather than equal shares; the family home was to be transferred to Mrs Critchell on the basis that Mr Critchell would be entitled to a 45% share of the net proceeds when it was eventually sold.

Within a month of the consent order Mr Critchell's father died unexpectedly, leaving him £180,000.

Six months later Mrs Critchell applied for a variation of the consent order to take this legacy into account. She claimed it represented an event that 'invalidated the basis or fundamental assumption upon which the consent order had been made'.

The High Court accepted this claim; Judge Wright considered that the husband's inheritance meant that he no longer needed his share in the former matrimonial home. The Judge varied the settlement by extinguishing Mr Critchell's charge over the former matrimonial home leaving it to Mrs Critchell.

Mr Critchell appealed, arguing that his inheritance did not change the family's assets and needs so as to invalidate the basis of the consent order. The object of the order was to meet the needs of the wife; it had, he said, achieved that goal and that had not changed as a result of his inheritance.

He claimed that the Judge had erred by substituting her own view of what was a fair order and overruling the order made by the district judge. Further, he argued, that overturning a consent order should be regarded by the judiciary as 'exceedingly rare'.

Mrs Critchell countered that if the reality of the father's imminent death had been known at the time of the original consent order, the court would have taken the inheritance into account as 'other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future'.

The Court of Appeal agreed with Mrs Critchell's view and the judgment produced a very neat summary of this issue 'Need is a relative concept which is affected by how much there is to go round'.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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