Setting aside a court financial order on divorce is incredibly difficult. One situation where it may be possible is where an unforeseen and unforeseeable event has occurred that fundamentally undermines the order. These are referred to as Barder events. A recent case suggests that COVID-19 can amount to a Barder event.
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Whether agreed between the parties or ordered by the court, the outcome of financial remedy proceedings is recorded in a court order. As soon as the court pronounces the decree absolute, ending the marriage once and for all, this financial order becomes final and binding on the parties.
What is a Barder event?
Although final, some court orders are nevertheless capable of being varied if there is a change in circumstances. For example, the level of maintenance can be increased or decreased, as can the term for which it is payable. However, court orders dealing with capital, ie lump sum payments and asset transfers, are incapable of being varied unless there are extreme circumstances. This might be because:
- it transpires that there has been material non-disclosure of information;
- a significant mistake comes to light;
- since the order was made, an unforeseen and unforeseeable event has occurred that fundamentally undermines the order.
This latter situation is known as a Barder event after the tragic case of Barder v Barder , where an order was successfully appealed out of time after the wife killed her children and then committed suicide within weeks of the final order being made.
Is COVID-19 a Barder event?
An application of this nature has an extremely high threshold. To succeed, it’s necessary to demonstrate that:
- the event occurred very shortly after the order was made; and
- the application was made promptly; and
- the event was entirely unforeseen and unforeseeable.
The question has arisen as to whether the COVID-19 pandemic amounts to a Barder event. In HW v WW , the financial order was made in March 2020. At that time the husband was the Managing Director of a company that was worth £3.5 million, but by June 2020, when he was due to pay his first lump sum payment of £750,000 to his ex-wife, the pandemic had significantly impacted his company and he defaulted on the payments. He applied to the court to set aside the financial order based on the pandemic impacting him financially and therefore a Barder event having occurred.
The court agreed that the COVID-19 pandemic is an “extraordinary event, different in nature and scale, to any similar world event in the lifetime of the parties” and therefore in principle it “can open the door to a successful Barder claim“. Despite this, the husband’s application was rejected. The court held that at the time the final order was made in March 2020, the effect of the pandemic was reasonably foreseeable.
So, although in this particular case the pandemic did not constitute a Barder event, the judgment nevertheless indicates that in an appropriate situation it might succeed. But we must not lose sight of the fact that there is a very high bar for such applications and successes are likely to be few and far between.