Guide to Barder Events

Originating from the case of Barder v Barder in 1987, a Barder event is defined as a new event that invalidates the main or fundamental assumption on which a financial remedy order was made and which can ultimately challenge that order. This type of event can be advantageous over the old regime as it allows for decisions to be set aside without having to make a formal application for permission.  

If you’re considering or going through a divorce, click below for a free initial consultation with one of our expert divorce solicitors.

BOOK FREE CONSULTATION

GROUNDS AND CONDITIONS 

The grounds for a Barder event are mostly based on the decisions of the judge, however in addition there are four conditions which must be satisfied.   

The first is that new event has transpired since the order was made and overturns the main assumptions on which the order was given, so that if leave to appeal were to be allowed, it would be likely or certain to succeed.  

The second is that the new event transpired in a relatively short period of time after the order was made. This period of time should not exceed a few months.  

The third is that the application to appeal out of time is made promptly in the context of the case.  

Finally, the last condition is that leave to appeal out of time would not put third parties at a disadvantage where they have acquired, in good faith, interests in property which are subject to the relevant order.   

TYPES OF EVENTS 

In order to be able to use a Barder event effectively, the event must be unforeseen and unforeseeable. Barder events are not set in stone and are often decided on specific facts. The courts tend to be restrictive in their approach to them and no one decision in one case is certain to be the same for another.  As a result, Barder events are very rare, as changes to court orders are not preferred and should be used in exceptional circumstances only. 

TYPES OF CASES 

Barder events are usually considered and examined in cases involving: 

• Change in value of assets 

• Change in employment status 

• Death 

• Remarriage or cohabitation where it was concealed  

• Change in housing needs 

• Inheritance  

Barder events are not applicable in the following: 

• Cases of redundancy 

• Change in calculation of an asset  

• Straightforward remarriage  

WHAT IS A BARDER EVENT?

EXAMPLES OF BARDER EVENTS IN CHANGES OF HOUSING NEEDS 

A change in a child’s living circumstances can mean that the initial assumption the original order was based on is no longer applicable, so an appeal would be possible and most likely successful. An example is where a child’s primary carer changes from the mother to the father, meaning that the mother no longer has housing needs as high as she would have had when the order was made. As result, this means that the amount given to the mother can be reduced.

EXAMPLES OF BARDER EVENTS IN INHERITANCE CASES 

Depending on the facts of the case, receiving inheritance can constitute a Barder event. If an order was based on needs, this can affect the possibility of inheritance being a Barder event. For example, if the inheritance means that one party no longer needs the interest in the former matrimonial home to discharge debt, and the mortgage can be redeemed, then the assumption on which the order was made no longer applies. 

CHALLENGING AN ORDER WITH A BARDER EVENT  

The order first needs to be set aside. This means that the grounds on which this can happen must include a subsequent event, which is unforeseen and unforeseeable at the time the order was made and which invalidates the reason on which the order was made.  

EFFECT OF COVID-19 ON BARDER EVENTS  

Barder events have to be exceptional. It is important to remember that in normal times, pre-pandemic, they were more often than not refused. In BT v CU [2021] EWFC 87, Mostyn J suggested that it was unlikely that the pandemic constituted a Barder event. However, whilst a similar application was rejected in HW v WW [2021] EWFC B20, the court held that the pandemic and its effect on key assets could potentially constitute a Barder event.