A Barder event is a principle in Family law that allows a party to set aside or appeal a financial remedy order made upon divorce if a significant event occurs shortly after the order is made.
The principle derives from the case Barder v Barder [1987] where an order was successfully appealed because of a very sad situation where the wife killed the two children of the family and committed suicide within weeks of the final order being made. The Court of Appeal set out specific criteria for revisiting and potentially overturning financial orders made upon divorce.
Criteria for Applying the Barder Principle
To successfully apply the Barder principle the following conditions must be met:
- A significant and unforeseen event occurs within a relatively short time (months) after the order is made
- The event must invalidate the basis of the order or a fundamental assumption upon which the order was made
- The application to set aside the order must be made promptly, typically within a few months of the event
- Permission must not prejudice any third parties who have acquired rights in relevant property in good faith and for valuable consideration
Typically, Barder events do not involve general misfortune, such as losing a job. Barder events are exceptional and rare where parties have suffered significant financial losses or potential losses as a result of external events that are beyond their control. The threshold for what constitutes such an event is very extremely high.
The event must significantly alter the basis on which the original order was made and therefore it would be unfair to uphold the original agreement. For example, if a wife was awarded a large proportion of the family assets to support a child, and the child tragically dies shortly after the order is made, this could be grounds to set aside the order under the Barder principle.
Courts are generally reluctant to reopen financial orders. However, if the principle is successfully applied the court can set aside the original order and make a new one that reflects the change in circumstances.
