Whilst the team at Burgess Mee are regularly contacted to help resolve the financial aspect of a separation, they are also often approached after the event when a court order is in place but one party’s circumstances have changed to an extent that they believe the former should be ‘set aside’.

The rules concerning an application to set aside a court order are strict, as the court’s focus is always on trying to achieve finality for the parties and most importantly, any children of the family. While there may be a reason to set aside an order where there has been an event prior to any order being made but which only comes to light afterwards, this blog will look only at events which have taken place and come to the attention of one or both of the parties after the order has been made.

The case of Barder and Barder in 1987 established a principle which allows a challenge to an order on the basis of a new event (known by shorthand as a “Barder event”). The case sets out four conditions which must be satisfied in order to successfully challenge an order:

1. The new event(s) which has occurred must invalidate the basis on which the order was made. This new event(s) must have been unforeseen and unforeseeable.
2. The new event(s) must have occurred a relatively short time after the making of the order. This is often considered to be not as long as a year and, in most cases, will be within a few months.
3. The application to set aside the order must be made relatively promptly. Time is of the essence.
4. The set aside, if granted, should not prejudice third parties who have acted in good faith. For example, by buying a property.

A fifth consideration was considered necessary in the case of BT v CU by Mr Justice Mostyn:

1. The applicant must demonstrate that there was no other relief available to remedy the unfairness caused by the new event (for example, an application to vary the terms of an order).

There have been a number of cases where the above principle has been considered which have provided helpful guidance to lawyers about what will and will not constitute a Barder event. Events that the court has considered include:

• Death
• Changes in the value of assets
• Changes in employment status of one/both parties
• The remarriage or cohabitation of one party
• Changes in housing needs
• Inheritance

In the very sad case of Barder v Barder the wife took her own life shortly after the final order was made, along with those of the parties’ children. The court considered that this was an event capable of causing the order to be set aside, although there have also been examples where a death has not been passed the threshold necessary for the court to consider setting aside the order.

By way of another example, the court found in the case of Williams v Lindley that one party’s engagement a few months after the final order did constitute a Barder event. However another case, Dixon v Marchant, found that a party’s re-marriage seven months after the order was made did not constitute a Barder event. It is a well-worn turn of phrase for lawyers, but every case will turn on its facts.

On covid – a post-script

During the Covid-19 pandemic there was debate amongst lawyers about whether the economic effect of this global crisis would constitute a Barder event. In the case of BT v CU, Mr Justice Mostyn indicated that the Covid-19 pandemic was “probably not” capable of being a Barder event but reminded us that this decision would be a fact-specific question.

It is clear that the court will consider each application on its own merits and therefore specialist legal advice should be sought as soon as possible once one individual considers that there has been an event of this kind. There are far more examples of unsuccessful Barder applications so caution should be exercised before further expense is incurred chasing a lost cause.

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