Once a Financial Remedy Order has been made by a Court there are only very limited and exceptional circumstances in which it can be overturned or set aside. One of those circumstances is when what is known as a ‘Barder’ event occurs.

The 1987 case of  Barder v Barder [1987] 2 FLR 480  established that a court can allow a challenge to a Financial Remedy Order on the ground of new events. The new events must have been unforeseen and unforeseeable, and the following criteria must be satisfied:

  • The new events invalidate the basis or fundamental assumption on which the order was made, meaning that if leave to appeal out of time were granted, the appeal would be certain, or very likely to succeed.
  • The new events happened within a relatively short time of the order being made.
  • An application for leave to appeal out of time is made reasonably promptly.
  • The grant of leave to appeal out of time would not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which itself is the subject matter of the relevant order.

In a recent case of BT v CU [2021] Mostyn J was asked to consider whether the Covid-19 pandemic was capable of being a Barder event.

The Order in this case provided for the husband to pay to the wife a series of lump sums between 2019 and 2023 with tapering spousal maintenance to be paid until the final lump sum had been paid. There was a departure from equality in the husband’s favour because he was retaining the most valuable but risk-laden asset, which was a business that provided school meals.

After schools were closed in March 2020 the husband applied to the Court to set aside parts of the Order, arguing that the Covid-19 pandemic was unforeseeable and had had devastating financial consequences. He argued that the pandemic had invalidated the fundamental assumptions on which the order was made.

Mostyn J found that a reasonable person in October 2019 may have said that there was a prospect of an economic downturn the following year, which would result in reduced turnover and increased costs. He said that the fundamental basis of the Order was that the husband was retaining the risk-laden assets. As such it was held that the Covid-19 pandemic is “probably not” capable of being a Barder event, but this will be case dependent.

If you need advice on any of the issues raised in this article please contact our specialist family team on 01524 846846.

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