Henry Hood examines the Thwaite jurisdiction where a client seeks adjustment of a financial remedy order in The Review

Henry’s article was published in Resolution, 2 August 2021, and can be seen here.

Henry Hood, Head of our Family & Relationships department, explains that the Thwaite jurisdiction, though historically underused, has emerged as a valuable alternative to the more stringent Barder test for revisiting financial remedy orders in family law.

Originating from Thwaite v Thwaite [1981], this jurisdiction allows courts to adjust executory (unimplemented) orders if it would be inequitable to enforce them due to a significant change in circumstances. Unlike Barder, Thwaite does not require the event to be unforeseeable or for the application to be made promptly, making it more flexible and potentially more widely applicable.

Recent High Court decisions, including Akhmedova v Akhmedov and Kicinski v Pardi, have clarified and expanded the scope of Thwaite, with the latter case reinforcing that a Barder-level event is not necessary to invoke the jurisdiction.

The evolution of Thwaite has seen varying judicial interpretations. While some, like Mostyn J in SR v HR, have sought to limit its application, others, including Roberts J and Lieven J, have embraced a broader, more pragmatic approach.

In Kicinski v Pardi, Lieven J notably rejected the requirement that the change in circumstances be wholly unforeseen, arguing that foreseeability should not preclude relief where enforcing the original order would be inequitable. This aligns with the Court of Appeal’s reasoning in Bezeliansky v Bezelianskaya, which affirmed that the threshold for Thwaite is lower than for Barder.

As the courts continue to navigate the post-pandemic landscape, Thwaite may increasingly serve as a crucial tool for achieving fair outcomes where rigid adherence to original orders would result in injustice.

Read the full article on the Resolution website [subscription required].