Can the court reconsider a financial settlement?
There are very limited circumstances in which a court will revisit a final order in a financial settlement alongside a divorce.
One option is to appeal against a final order, there are very limited circumstances in which an appeal will have prospects of success.
Another option would be to make an application for the court to reconsider the decision in light of a new, unforeseeable event - which is referred to as a Barder event.
What is a Barder event?
A Barder event is where something happens shortly after a final court order is made which undermines the basis of the said order. Due to the Barder event taking place a party can apply to amend what was intended in the final order.
There are four core principles which must be satisfied to establish a Barder event. They derive from the case of Barder v Barder and are listed below:
New unforeseeable and unforeseen event(s) have occurred since the making of the order, which invalidate the basis, or fundamental assumption, upon 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.
The new event(s) should have occurred within a relatively short time of the order having been made.
The application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.
The grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith or valuable consideration, interests in property which is the subject matter of the relevant order.
There is no specific list of what amounts to a Barder event and furthermore, there is little case law regarding this. There can be huge difficulties in trying to successfully establish a Barder event.
Is Covid-19 a Barder event?
There is a lot of speculation at the moment as to whether or not Covid-19 amounts to a Barder event.
Currently it is unlikely that Covid-19 would be considered as a Barder event, especially as they are extremely difficult to establish. The court is likely to have the view that Covid-19 simply constitutes a delay and it is therefore remote that the court would find it to be a Barder event.
However, having said this, there is scope that Covid-19 could amount to a Barder event. It is certainly arguable that the pandemic of Covid-19 was unforeseeable. Covid-19 has financially impacted many people’s lives and as a consequence has led to people’s needs no longer being met. On this basis, the court may be prepared to set aside an order. The prospects of success in making such application will depend very much on all circumstances of the case.
Whether or not Covid-19 will be considered as a Barder event is very much dependant on how matters progress in the upcoming months. If it is considered a Barder event, then this could open a floodgate of people applying to the court, so people should be prepared for future delays and inevitably backlogs.
Should you continue to negotiate a financial settlement in light of Covid-19?
Covid-19 is likely to have a major impact on our economy, but at this stage it is not known what extent that impact will be.
Reaching a financial settlement now depends on how feasible it is to achieve this. The value of assets could dramatically alter over the next few weeks and this needs to be taken into consideration when trying to reach a settlement.
If key information is missing, such as property valuations, then ultimately decisions ought to be placed on hold until this information can be obtained.
Careful consideration needs to be given to businesses involved in negotiations. They should be assessed on a case by case basis. Covid-19 has affected all different types of business, both positively and negatively, and this will vary from sector to sector.
There is an added element of risk if you decide to enter into a financial agreement now. It would be sensible to wait until restrictions are lifted and the economic effects can be more accurately assessed.
If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at firstname.lastname@example.org or using the form below.
The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.