What if something happens after my Financial Order is approved by Court?

Following the conclusion of financial remedy proceedings, your situation could change unexpectedly, and you may feel that had this happened during the course of the proceedings, it would have affected the outcome of those proceedings. The Courts acknowledge that this is a possibility but will only set aside an existing Order once they are satisfied that certain criteria are met.

What is a Barder Event?

The Court will examine the event which has occurred to see if it could be classed as a “Barder Event”, which draws its name from Barder v Barder (Caluori Intervening) [1987]. These criteria were summarised by Mostyn J in BT v CU [2021] as follows:

1. A new event must have occurred since the making of the Order invalidating the basis, or fundamental assumption, upon which the Order was made.
2. The new event must have occurred within a relatively short period of time after the Order was made. This is unlikely to stretch to a year, and Mostyn J believed that it will be no more than a few months in most cases.
3. The application to set aside should be made promptly in the circumstances of the case.
4. The application, if granted, should not prejudice third parties who have, in good faith and for valuable consideration, acquired interests in property which is the subject matter of the relevant order.
5. The Applicant must demonstrate that no alternative mainstream relief is available which would broadly remedy the consequences of the event, for example, applying to vary the Order.
6. The new event must be unforeseeable, not merely unforeseen. In other words, the probability of the event must have been so small that a reasonable person would have felt justified in brushing it aside as far-fetched.
    

These principles are best understood in the context of case law:

In Myerson v Myerson (No 2) [2010], it was deemed that the 2008 financial crash was foreseeable, as shifts in share values and financial crashes are normal. The size of the crash had no impact on whether a crash itself was foreseeable or not.

In BT v CU [2021], whilst it was accepted that the Covid-19 Pandemic had caused significant disruption to the business in question, the business was showing signs of recovery, and it was accepted that all businesses involve an element of risk. As such, the fundamental assumptions of the Order in that case were not undermined by the Covid-19 Pandemic, and so it was not deemed to be a Barder Event in that case.

A good example of what would be a Barder Event is Barder v Barder (Caluori Intervening) [1987]. An Order was made to transfer the Husband’s interest in the former family home to the Wife, for her benefit and the benefit of the Parties’ children. However, a month later, the Wife killed herself and her two children. This was held to have fundamentally undermined the principles on which the Order was made, and as it was unforeseeable, the Order was set aside.

What will the Court do if a Barder Event has occurred?

If a Barder Event has been found to have occurred, the Court may choose to set aside the Order, but they also have the discretion to not do so. It may choose to simply amend an effected paragraph or vary the Order as a whole. However, if what is affected by the Barder Event is substantial, the Court may order a Limited or even a Full rehearing of the case.

As such, it is always wise to pause before making an application to set aside an Order because of a perceived Barder Event. They are rarely awarded, and you could be ordered to pay your opponents’ legal fees should you not win.

Before you make any application, we strongly encourage you to seek legal advice. Please get in touch with Johnson Astills today and we would be more than happy to discuss your requirements further. Please call us at our office in Leicester on 0116 255 4855 or our office in Loughborough on 01509 610 312 and ask to speak to a member of the Family Team. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.