Changing a financial order due to a Barder event

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 means that a party can ultimately challenge that order.

The Barder principle provides for an order to be set aside (or appealed outside of the usual time restraints), subject to four conditions which must be satisfied:

1. A new unforeseen and unforeseeable event occurred following the making of the order, which invalidates the basis or fundamental assumption upon which the order was made, making an application to appeal likely to succeed

2. The event occurred within a relatively short time following the order (likely weeks up to a few months)

3. The application was made reasonably promptly

4. The application should not prejudice third parties who have acquired property subject to the order

In BT v CU [2021] EWFC 87, Mostyn J also suggested that there is a fifth condition, that the applicant “must demonstrate that no alternative mainstream relief is available” to remedy the unfairness caused by the subsequent event.

Genuine Barder events are rare, as its conditions provide a high threshold to protect the public interest in the finality of financial remedy orders. In Barder, the wife tragically killed herself and the parties’ children five weeks after the order was made.

The case of Myerson v Myerson [2009] EWCA Civ 282 provides useful clarification as to whether a major economic downturn can constitute a Barder event. Here, the court held that the significant decrease in the value of the husband’s assets due to the 2008 financial crisis could not be considered a Barder event. It was emphasised that “the natural process of price fluctuation…however dramatic” was insufficient.

What about the Covid-19 pandemic? In BT v CU, Mostyn J suggested that it was unlikely that the pandemic constituted a Barder event. Similarly, in FRB v DCA (No 3) [2020] EWHC 3696, the court refused to set aside an order due to the pandemic’s alleged impact on the husband’s business. 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. 

Inheritance may be considered a Barder event per Critchell v Critchell [2015] EWCA Civ 346. In this case, a Mesher order in favour of the husband was set aside as it had been made to provide for his future housing needs, which could then be met through a substantial inheritance.  

Additionally, a change in the living circumstances of any relevant children may also be a Barder event. In Nasim v Nasim [2015] EWHC 2620, a final order was made on the understanding that the couple’s two children would live with the mother. Six weeks later, an ‘incident’ occurred between the wife and eldest child, resulting in a criminal prosecution and the children living with the husband instead. As a result, permission to appeal the order was granted.

What the case law shows is that an ordinary change in circumstances will not be considered a Barder event.  

If an unexpected and significant event has occurred following your final order being made, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.  

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