Originating from the case of Barder v Barder in 1987, a Barder event is defined as a new event that occurs, 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.
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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 events have transpired since the order was made which overturns the main assumptions on which the order was given so that if grant leave to appeal were to be allowed, it would be likely or certain to succeed.
The second is that new events have 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 the grant of 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 in themselves are subject to the relevant order.
In order to be able to use a Barder event effectively, the new events that occur 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. Barder events are as a result very rare as changes to decisions made in court are not preferred and should be used in exceptional circumstances only.
Barder events are usually considered and examined in cases involving:
Change in value of assets
Change in employment status
Remarriage or cohabitation where it was concealed
Change in housing needs
Barder events are not applicable in the following:
Cases of redundancy
Change in calculation of an asset
A change in children’s living circumstances can mean that the initial assumption made on the original order can no longer be 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 changed. This as result, means that the amount given to the mother can be reduced hence making the appeal successful based on the facts.
Always depending on the facts of a case, the receipt of an inheritance can allow for a Barder event to be possible. If after a consent order is made and an inheritance is received and the order was based on needs, this can have a knock-on effect on the possibility of 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.
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.
Until a case is heard in court re Barder events and the pandemic, it is uncertain as to whether they will be effective. However, with the mentality that Barder events already carry with them of being only exceptional circumstances, it is important to remember that in normal times, pre pandemic, they are more often than not refused. Since the pandemic has had such a huge and long-lasting impact on the majority of the population, it is clear that should Covid-19 become a Barder event, however this would allow for a huge influx of cases to be raised in court.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.