In AP v TP [2025] EWFC 190 (B), His Honour Judge Farquhar delivered a pointed and practical judgment showing that while final orders are meant to be just that—final—there are limits to judicial patience, especially where one party repeatedly obstructs their implementation.
This decision illustrates the continuing relevance of the Thwaite jurisdiction in family law and offers important clarity on when a Pension Sharing Order (PSO) can be set aside—not because circumstances have changed, but because one party has simply refused to cooperate.
The Background: Final Order, Endless Delay
The parties had reached a financial settlement in April 2023 that included:
- The sale of the family home (split 47/53);
- A Pension Sharing Order of 48.94% in favour of the wife (TP) from the husband's Aviva pension (worth £193,000).
But two years later, the husband (AP) remained in limbo. Now 70, in poor health, and unable to access his pension, AP faced the stark reality that he could not retire—not because of the court order, but because the PSO had never been implemented. The reason? The wife refused to complete the basic paperwork, despite being chased, ordered, and reminded repeatedly.
The Thwaite Jurisdiction: Equity in Action
Unable to vary the order under section 31 MCA 1973 (because the Decree Absolute had been granted years before), AP turned to the Thwaite jurisdiction, stemming from Thwaite v Thwaite [1981]. This line of authority allows the court to refuse to enforce or adjust executory parts of an order where it would be inequitable to enforce them due to subsequent developments—particularly deliberate frustration.
Judge Farquhar canvassed several key authorities:
- Bezeliansky v Bezelianskaya [2016] EWCA Civ 76: endorsing the ability to adjust executory orders obstructed by one party;
- BT v CU [2021] and SR v HR [2018]: Mostyn J’s scepticism of the doctrine;
- Hersman v de Verchere [2024] and Rotenberg v Rotenberg [2024]: more recent judgments reaffirming its viability.
His conclusion? The Thwaite jurisdiction remains good law, though to be used carefully. And this was a textbook case.
Why Not Barder?
Interestingly, the court explicitly declined to rely on the more stringent Barder test. That doctrine, used to set aside orders due to unforeseen and fundamental changes of circumstance (e.g., sudden death, collapse of a business), did not fit here. This wasn’t about change—it was about non-compliance.
The Result: Final Warning Before the Final Cut
Judge Farquhar ruled that it would be inequitable to uphold the PSO when the wife had spent two years refusing to implement it. He proposed to set aside the PSO entirely unless she complied within 28 days.
The warning was stark—and printed directly into the order:
“This will result in you losing the benefit of approximately £94,000 worth of pension benefits… Your ability to obtain this pension benefit will be lost forever.”
The judge considered and rejected a Pension Attachment Order, as that would undermine the clean break agreed by both parties and lacked jurisdictional support.
Key Points for Practitioners
- Non-compliance can void orders: If a party actively obstructs an executory provision, the court may remove it entirely.
- Thwaite lives on: Despite some judicial scepticism, the doctrine remains available—especially where enforcing the original order would now be inequitable.
- Clean break still holds weight: The court was reluctant to undo the clean break to salvage the PSO—underscoring the importance of structuring settlements properly from the start.
- Final means final, but fair must remain fair: The Family Court retains equitable discretion to undo unfairness—but only when the behaviour is egregious and the solution proportionate.
Final Thought
AP v TP reminds us that court orders are not mere aspirations—they are meant to be implemented. When they’re not, and especially when one party stands in deliberate obstruction, the courts are willing to act—even if that means ripping up a carefully negotiated pension share.
For lawyers and clients alike, the case is a clear message: a signed order is not the end of the story if it’s never allowed to begin.
