The case of Barder is known in the family law world as a landmark case. It told us that, if something so significant occurs after a final financial remedy order is made (known as a Consent Order), that it invalidates the basis upon which the consent order was made, the court will allow an appeal out of time.
The facts of the case of Barder back in 1987 are tragic, and the event that occurred after the Consent Order was made was so extreme that it led the court to allow the appeal and change its terms. The case coined the term ‘Barder event’. However, we know from the cases that have come since that successful reliance on it will be rare, and should not be considered as a means to undermine the principle of the finality of financial remedy orders.
There has been discussion within the family law world as to whether the impact of covid-19 would constitute a Barder event, enabling the parties to make an application to appeal out of time to challenge a financial remedy order?
The court set down four principles to apply when relying on a Barder event, and the question is going to fall on whether the impact of covid-19 on that particular set of circumstances has invalidated the fundamental assumption upon which the order was made. Covid-19 will almost certainly be considered by the court as unforeseen, and its impact is far-reaching. What if covid-19 has fundamentally impacted on the income or capital of one of the parties? What if one of the parties dies as a result of covid-19 in the weeks or months after an order is made?
The answer is not yet known, and every case will turn on its own facts. The court will require that the application to appeal out of time must be made promptly, and specialist legal advice and assistance should therefore be considered in every case.