Barder - The Good, the Bad and the Ugly

Much has been written about the case of Barder v Calouori [1988] AC 20 (“Barder”) in the initial stages of the COVID-19 lockdown. It was held out as the means by which maybe just maybe it might be possible to reopen a case where a substantive financial order has been made on the basis that the COVID-19 pandemic is an event which has invalidated the basis or fundamental assumptions of the original financial order.

Barder was a desperately sad case where the wife took her own life thereby invalidating the basis of a consent order by which the husband had agreed to transfer his interest in the family home to her. The threshold is incredibly high in terms of the event being both ‘unforeseen’ and ‘unforeseeable’ and there are additional conditions that must be met before a Barder application will succeed. For example and in the context of COVID-19 the order must have been made shortly before the outbreak of the pandemic (a matter of months at the most); the application to set it aside must be made promptly and in undoing any transactions ...

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