The Barder principle is a legal doctrine within family law cases, particularly in relation to financial settlements following divorce. It originates from the case Barder v Barder [1987], in which the Court of Appeal set out specific criteria for revisiting and potentially overturning financial orders.
The Barder principle serves as a safeguard to ensure fairness in family law, allowing for the reconsideration of financial orders when extraordinary and unforeseeable events occur. While it is a powerful tool, its application is strictly limited to prevent the reopening of cases on trivial grounds, thus balancing the need both for fairness and finality in divorce settlements.
What is the Barder Principle?
The Barder principle allows a party to seek to set aside a financial order made during divorce proceedings if a significant event occurs shortly after the order is made. This event must fundamentally alter the basis on which the original order was made, rendering it unfair or unjust to uphold the original settlement. For example, if a spouse was awarded a large portion of the marital assets to support a child, and the child tragically dies shortly after the order is made, this could be grounds to invoke the Barder principle.
Criteria for Applying the Barder Principle
To successfully apply the Barder principle, four key conditions must be met:
- New Event: An unforeseen and significant event occurs after the order is made.
- Fundamental Change: This event invalidates the assumptions upon which the financial order was based.
- Prompt Application: The application to set aside the order must be made promptly, typically within a few months of the event. Although there is no strict time limit, delay can undermine the application.
- No Appeal Pending: The order must not have been subject to an ongoing appeal at the time of the application.
Examples of Barder events might include:
- The death of one of the parties involved.
- Remarriage or entering into a subsequent civil partnership, particularly if there was a concealed intention to remarry at the time the order was made.
- Receiving an inheritance or a significant windfall.
- A change in the law that could not have been anticipated.
Typically, Barder events do not encompass:
- General misfortune, such as losing a job.
- Substantial changes in the value of assets due to normal price fluctuations
Application in Family Law Cases
In practice, the Barder principle is invoked in very rare and exceptional circumstances. Courts are generally reluctant to reopen financial orders, as finality is a key principle in family law. However, when the principle is successfully applied, the court can set aside the original order and make a new one that reflects the altered circumstances.
For example, a situation where the principle might be applied is if one party receives a significant inheritance shortly after a financial order is made, fundamentally altering their financial situation. However, courts have made it clear that mere financial changes, such as fluctuations in the value of assets or unexpected financial difficulties, are not sufficient to satisfy the Barder criteria.
How to apply to set aside Order using Barder Principle?
The application to set aside the order is submitted to the same court that issued the original order and is handled within the same proceedings in which the financial remedy order was made. The application is heard by a judge of the same level who dealt with the original case, and ideally, by the same judge.
The presumption is that the original order was correctly made. The court can only set aside the order and rehear the financial remedy application once the grounds for setting aside have been proven or accepted.
If the court sets aside a financial remedy order, it must issue directions for the rehearing of the financial remedy proceedings or make other appropriate orders to resolve the application.
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