There was an assumption amongst family lawyers that the pandemic may be viewed as a reason to set aside a financial order made in family proceedings.
It is extremely difficult to satisfy the test known as the Border principle, to persuade a court to in some way change a previously approved order. In the tragic case of Barder in 1987, only 5 weeks after the order was made, the wife killed the children of the family and then committed suicide. The court found that the entire basis on which the order had been made had been invalidated by the unforeseeable events.
The case established 4 principles to be satisfied in order for a case to succeed:
- New events have occurred since the making of the order, which invalidates the basis upon which the order was made
- The new events should have occurred within a relatively short time. (this would generally mean within a few months of the original order being made)
- The application for leave (permission) to appeal out of time should be made reasonable promptly
- The grant of leave should not prejudice third parties who have acquired in good faith and for valuable consideration, interest in property which is referred to in the order.
This is still a high test and many cases have been unsuccessful in trying to establish it over the years. In the last year or so, in fact, very few cases have made reference to the pandemic at all and there are no reported Barder cases referencing the pandemic.
As the Barder test is so high, parties may be using other methods where they are struggling to comply with the terms of an order. For example, most orders will contain a “liberty to apply” provision as to implementation. If one party is struggling to comply with an order as to paying a lump sum or securing a mortgage for example, due to the pandemic, it may be possible to ask the court for more time under this provision.
If you are struggling with regard to the implementation of a family court order or have any other queries, please speak to our Family Team in Doncaster, contact Taylor Bracewell on 01302 341414 or alternatively email Sharon.firstname.lastname@example.org