When an individual is dissatisfied with an outcome in financial remedy proceedings, there a few options which they can consider to alter that outcome.
Broadly speaking, it is possible to appeal a decision within 21 days of the decision of the lower court. If the deadline has passed, there are two main options: (1) apply out of time if a Barder
event has invalidated the basis of the decision, or (2) apply to set it aside, on the basis of fraud, mistake, undue influence, non-disclosure or lack of capacity at the time the order was made. For further detail on this last point, please see 'Capacity to enter into compromise agreements – MAP v RAP  EWHC 4784 (Fam)'
This article looks at challenging an order due to the basis of that order being invalidated by a subsequent event, and the Court of Appeal’s latest musings on the subject in Critchell v Critchell  EWCA Civ 436
,  2 FLR (forthcoming).
Brief summary of Barder principles
In Barder v Barder
 2 FLR 480, Lord Brandon set out that a court may grant leave to appeal out of time on the ground of new events if four conditions are satisfied:
- that the new events that occurred since the making of the order invalidate the basis, or fundamental assumption, from 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;
- that the new events have occurred within a relatively short time of the order having been made;
- that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case; and
- that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.
In Critchell v Critchell
, the parties were married in 2001 and had two daughters, aged 14 and 12. They separated in August 2010. In March 2013 the parties took part in an FDR hearing. The only significant matrimonial asset was the former matrimonial home, which had net equity of approximately £175,000. Since separation, the husband had bought himself a home using £85,000 borrowed from his father and £63,000 taken on a mortgage. As such, this property had little, if any, equity. Both parties worked and earned modest salaries. They were also both in receipt of working tax credits. The wife also received some children benefit and payments from the husband under the Child Support Agency (as it then was).
The district judge gave an indication at the FDR, after which the parties were able to conclude the proceedings by consent. A consent order was made that day, providing for the former matrimonial home to be transferred into the wife’s sole name, with her having responsibility for the mortgage. There was also to be a Mesher charge in favour of the husband, for a lump sum equal to 45% of the net proceeds of sale of the property, with standard trigger events.
Within a month of the consent order being made, in April 2013, the husband’s father died, leaving him with an inheritance of about £180,000. In September 2013, the wife filed a notice of appeal. Judge Wright gave permission to appeal in January 2014, and allowed the appeal in March 2014. It was accepted that the husband’s father’s death was 'completely unforeseen' and the judge held that the inheritance was a Barder
event, which invalidated the basis or fundamental assumption upon which the consent order had been made. She varied the order by extinguishing the husband’s charge over the former matrimonial home.
The husband appealed the order of Judge Wright.