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Important family law cases: Barder v Barder

Orders setting out financial/property settlements on divorce are intended to be final, but what if an event were to occur shortly afterwards, but beyond the period normally allowed for an appeal, which undermined the whole basis upon which the order was made? Will the court in those circumstances be prepared to grant permission to appeal out of time?

That was the situation facing the House of Lords in the 1988 case Barder v Barder (Caluori Intervening) (unfortunately, I can’t provide a link, as the judgment does not appear to be freely available online).

The tragic facts in Barder were that a consent order had been made providing for the husband to transfer his interest in the former matrimonial home to the wife, who would be looking after the two children, in full and final settlement. Only five weeks after the order was made, and before the transfer had been put into effect, the wife killed the children and then committed suicide. In her will, she left her estate to her mother, who then sought enforcement of the order, and the husband sought to appeal against the order out of time.

Lord Brandon in the House of Lords set out four conditions that would have to be satisfied before the court would grant permission to appeal out of time:

1. 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.

2. That the new events have occurred within a relatively short time of the order having been made.

3. That the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.

4. 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.

The House of Lords held that the exceptional facts in Barder did fulfil these conditions, that permission to appeal should be granted, and that the appeal should be allowed. Lord Brandon stated:

“There can, in my opinion, be no doubt that the consent order … was agreed between the husband and the wife through their respective solicitors, and approved by the registrar, upon a fundamental, though tacit, assumption. The assumption was that for an indefinite period, to be measured in years rather than months or weeks, the wife and the two children of the family would require a suitable home in which to reside. That assumption was totally invalidated by the deaths of the children and the wife within five weeks of the order being made.”

Barder is another case that has given its name to the lexicon of family law, with ‘qualifying’ post-order events being known as ‘Barder events’ and applications for permission to appeal out of time based upon such events being known as ‘Barder appeals’.

Barder appeals have appeared regularly in the law reports since 1988, and are still ‘measured’ against Lord Brandon’s four conditions. Apart from the death of a party, various other events have been argued to qualify as Barder events, including changes in the value of assets, cohabitation or remarriage of a party and even changes in the law. However, relatively few have been successful – as I stated at the outset, orders are supposed to be final, and the circumstances therefore have to be exceptional for them to be re-opened.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Andrew says:

    Barder is a classic example of a hard cases making a bad law. It has led to many unmeritorious applications which cause concern and worry to respondents who are entitled to think that the litigation is over.

    I would abrogate it by statute and replace it with a provision under which capital orders (including the dismissal of maintenance claims could not be appealed out of time, and could not be appealed in time by reason only of a subsequent change of circumstance, and if made by consent not at all, except in the case of

    (1) the death of the other party within one year, not extendable unless it appeared that it had been concealed from the survivor in which case the year would run from the survivor learning of it; or

    (2) the death of a child of the marriage while under 18, or before that child ceased to be the beneficiary of a Mesher order; or

    (30 the remarriage of the other party (not disclosed as a likelihood before the order) within six months.

    Any other change, any other change at all, would have to be accepted as just one of life’s contingencies.

    This would not preclude late appeals in the case of fraud or significant non-disclosure – and it would not have stopped Mr Barder’s application. Does it sound fair to others?

  2. REPOST: Important family law cases: Barder v Barder by John Bolch | Under the Law says:

    […] Bolch of talks about the 1988 case Barder v Barder as an example of a possible exception to the rule against […]

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