Thwaite jurisdiction

If an order has not yet been implemented, or it has only been partly implemented, this means that the terms of the order remain executory and can be varied or set aside by the court. This principle was established in Thwaite v Thwaite [1981] 2 FLR 280, coining the term ‘Thwaite jurisdiction’. In this case, the court held that an executory order can be varied if it would be unfair to hold the parties to the original order, due to a significant change in circumstances. 

Thwaite jurisdiction is like a Barder event, but has a lower threshold given that it applies to order that are still executory. Its existence is controversial and has been subject to significant judicial criticism in recent years, particularly by Mostyn J in BT v CU [2021] EWFC 87. He considered that Thwaite had not survived the Barder judgment, and therefore where the court is dealing with an unforeseeable change, the more stringent Barder test should apply.

However, in the more recent case H v W [2023] EWFC 120, the survival of Thwaite jurisdiction was confirmed. The judge noted that in cases where Thwaite had applied, many involved the deliberate frustration of an executory order by a party or third party, which may fail the first Barder condition of being unforeseeable. The judge also distinguished cases like BT where the fact that the order was executory was incidental, and where Barder should apply, from Thwaite cases where a party specifically exploits the executory nature of the order. In such cases, the only remedy for the disadvantaged party would be the Thwaite jurisdiction.

If there has been a significant change in the circumstances of your case and the court has made an order which hasn’t come into effect yet, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.  

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