Setting aside an existing financial order

The court is reluctant to set aside financial orders that have been made, to enable parties to rely upon them, allowing parties to manage their future finances with certainty.

There are a number of reasons that may justify the court setting aside such an order: fraud by one of the parties or non-disclosure of material evidence, a lack of capacity at the time an order was made and events that occur after the order was made, more commonly known as ‘Barder events’.

The court’s four conditions that must be satisfied to qualify:

  1. the new event is to have occurred after the original order was made, which invalidates the basis on which the original order was made.

  2. the new event occurred within a relatively short time of the original order being made. It would be extremely unlikely that the length of time could be as much as a year. In most cases, it would be no more than a few months at most.
  3. the application is made reasonably promptly in the circumstances of the case.
  4. the grant would not prejudice third parties who have acquired interests in property, which itself is the subject matter of the relevant order.

The court have clarified that this intervening event must have been unforeseen and in fact, unforeseeable. The Barder case itself provides such an example. In these sad circumstances, Mrs Barder committed suicide after murdering her children, after the court made a financial order requiring the former family home to be transferred into her sole name.

Since the Barder case was heard in 1987, the courts have clarified their position regarding general price fluctuations of assets and child maintenance applications after financial orders have been made. These do not generally satisfy the court’s four criteria for setting aside an order.

Although case law suggests that events such as a substantial rise or fall in asset value, e.g. the “credit crunch“, may be of such great impact to trigger the Barder principles, the picture is not entirely clear, as demonstrated by the case of Maskell. Here, the husband’s loss of employment as a result of the credit crunch did not qualify as a Barder event.

Ultimately, each case is dependent on its own facts and the court must consider whether the new event that occurs was unforeseeable and in turn, invalidates the fundamental assumption of the original order.

If you wish to discuss a financial order, take advantage of our free consultation offer and contact us  on 01234 889777 to speak to one of our specialist family solicitors who can help you. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters.

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