Walkden v Walkden

Judgment

Lord Justice Thorpe :

Introduction

On 12 th June 2008 His Honour Judge Hunt sitting in the York County Court, granted leave to reopen an ancillary relief order made on 27 th April 2008 on the grounds of a supervening Barder event. The husband appeals that order.

Background

The parties are both 46. They married in 1986 and had two children. Their son James is now 21 but their daughter Charlotte is only 15 and is preparing for her A-levels.

In 1995 the husband participated in a management buyout of a company Triesse Limited (hereinafter Triesse). He became joint managing director and acquired 45% of the shares. In October 2005 the parties separated and on 26 th October entered into a separation agreement under the terms of which the wife received, amongst other benefits, a lump sum of £350,000.

In the first half of 2006 an investment company, Sylvan International Limited (hereinafter Sylvan), approached Triesse with a view to acquisition. Triesse management accounts for the half year to March 2006 demonstrated a pre-tax loss of £46,000. Negotiations for a possible sale terminated in May 2006. This approach was not disclosed to the wife. During this period the separation agreement was varied to give the wife 5% of the value of the husband’s shares in the event of a future sale. By subsequent variation requested by the wife, the husband agreed to pay her £81,000 in substitution for the 5% of a possible future sale. That further lump sum was paid in June 2006.

An effort was made to embody the terms of the separation agreement into a court order. On 7 th March 2006 the husband had filed a petition for divorce. The marriage was dissolved on the husband’s petition by a decree absolute of 22 nd June 2006. However the wife declined to agree to the consent order, preferring to activate a conventional claim for ancillary relief within the suit.

In August 2006 the parties each swore voluntary Forms E followed by a voluntary questionnaire from the wife in September.

However in September each initiated more formal proceedings. The husband issued a Notice to Show Cause application, that is to say he invited the court to order that the wife should receive no more than what was provided by the separation agreement as varied. The wife countered with a formal application for ancillary relief in Form A.

In December 2006 the Sales Director of Triesse resigned from the Board. On resignation he received £94,000 for his holding of 25,000 shares. This transactio