What is a Barder Event in Family Law?

A Barder event is when something unexpected happens soon after a financial order is made in a divorce, which completely changes the situation on which the order was based. This can justify the court setting aside or reopening the order, even outside normal appeal time limits. In legal terms, the Barder event is the triggering circumstance, while the Barder principle, derived from the case Barder v Barder (Caluori Intervening) [1988] AC 20, is the legal rule that allows the court to revisit the order because of that event.

When Barder principles apply

Whether the Barder principle applies depends on criteria established in case law, assessed by the court on the facts of each case. In Barder v Barder, Lord Brandon set out four conditions that must all be satisfied before the court will grant permission to set aside a financial order on this basis.

1. A new event invalidates the basis of the order – The new event must occur after the financial order was made and undermine the fundamental assumption on which the order was based, to the extent that an appeal would be certain or very likely to succeed. It is also necessary that the event was neither foreseen nor foreseeable at the time the order was made.
2. The event occurred within a short time – The new event must have occurred within a relatively short time of the order being made. While no exact period is prescribed, Lord Brandon stated it is extremely unlikely the period could be as much as a year, and in most cases, it will be no more than a few months.
3. The application is made promptly – The application to set aside the order must be made reasonably promptly in all the circumstances of the case. Any delay can undermine the application, even where the other criteria are met, and
4. No prejudice to third parties – Setting aside the order must not prejudice third parties who have, in good faith and for valuable consideration, acquired interests in property that is the subject matter of the original order.

Events that courts may consider to be Barder events include the unexpected death of a party shortly after the order is made, where the deceased’s needs were a central factor in the settlement. In Barder itself, the wife killed the children and took her own life within five weeks of the consent order being made. The fundamental assumption that the wife and children would need a home indefinitely was shattered.

Events that courts will not normally treat as Barder events include general misfortune such as losing a job, a substantial change in the value of assets due to normal market fluctuations, or a change in circumstances that was foreseeable at the time the order was made. In the case of Cornick v Cornick (1994), Judge Hale confirmed that to reopen a final divorce financial deal, it is an absolute requirement that the new event was completely unexpected and impossible to predict.

It is important to note that the courts apply the Barder principle very cautiously and only in exceptional cases. Reopening a financial order conflicts with the principle of finality in litigation, which courts treat as a strong public interest. In Richardson v Richardson [2011] 2 FLR 244, Thorpe LJ emphasised that cases in which a Barder event can successfully be argued are extremely rare, and that the jurisdiction should be regarded by the specialist profession as exceedingly rare. Even where all four conditions are met, setting aside the order is not guaranteed, and it does not automatically produce a better outcome for the applicant.

What should I do if a Barder event occurs?

If a Barder event occurs, you should speak to your family law solicitor about applying to the court as soon as possible. Time is critical, as delay can prevent the court from granting relief even if the other criteria are met. When making the application, your solicitor will:

• Make a prompt application to set aside the financial remedy order, or in limited circumstances seek permission to appeal out of time
• Clearly explain the Barder event and provide supporting evidence
• Demonstrate that the event fundamentally undermines the basis on which the financial order was made, and
• Show that reopening the order would not unfairly prejudice third parties who have acquired interests in the relevant property in good faith.

If the court is satisfied that the Barder criteria are met they may:

• Set aside or reopen the original financial order
• Reconsider the parties’ financial circumstances, taking into account the Barder event and any other relevant factors, or
• Make a new financial order that is fair in light of the changed circumstances.

Given the strict criteria and urgency involved, it is advisable to seek guidance from a family solicitor as soon as possible if you believe a Barder event may apply.

Reference:

Barder v Barder (Caluori Intervening) [1988] AC 20