In such uncertain times, many practitioners wonder whether this pandemic has the ability to undermine financial orders in divorce proceedings. Orders are generally made to be final but what if an event were to occur shortly afterwards, which undermined the whole basis upon which the order was made?
That is what happened in the case of Barder v Barder. Out of the Barder case the Barder principle was established where a court can exercise its discretion to grant leave to appeal out of time, if certain conditions are satisfied, although in highly limited circumstances.
In the Barder case the wife killed the children and took her own live five weeks after the financial consent order had been granted. In her will, she left her estate to her mother, who then sought enforcement of the order, and the husband sought to appeal against the order out of time. The House of Lords held that it was entirely appropriate to appeal out of time given that the basis upon which the order had been made was totally invalidated. Since this decision, the majority of the applications for Barder appeals have failed and it is a notoriously high-risk application to make.
Lord Brandon in the House of Lords set out four conditions that would have to be satisfied before the court would grant permission to appeal out of time:
- That the new, unforeseeable and unforeseen events that occurred since the making of the order invalidate the basis, or fundamental assumption, from which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed.
- That the new events have occurred within a relatively short time of the order having been made, for example no more than a few months.
- The person seeking to change the order should apply to the court promptly once the events have occurred.
- The requested change should not prejudice third parties who have paid for an interest in property covered by the order in good faith.
So is this case applicaable in light of the new climate and is Covid-19 a Barder event?
As we know, there are a very small number of cases where a financial order can be set aside on the grounds that something unforeseen and unforeseeable has occurred after the order was made, which undermines it. But surely this pandemic was unforeseeable, therefore, can it be said that for a small proportion of recent orders Covid-19 could be interpreted as a Barder event or will the courts avoid rocking the boat.
The financial impact of coronavirus has so far altered many people's lives and it will no doubt continue to given the level of uncertainty, therefore there is a real argument that for those that have recently entered into orders where 'needs' can no longer be met as a consequence of the unforeseen event, the courts may be willing to set aside an order. However, this will be finely balanced with the need to maintain the finality of litigation.
The landscape is ever changing with this new world we find ourselves in however, we should expect significant legal developments to come out of this in due course.
The Family Team at Pinney Talfourd appreciate that this is a challenging time for us all and we hope that this article helps readers to navigate the tricky times ahead of us.
This article was written by Kiren Dhillon, Senior Associate in the Family Law team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2020.