Setting Aside a Consent Order because of a Change in Circumstances – Barder Case

A Consent Order can be challenged and Set Aside in some cases if there has been a significant change in one of the couples circumstances or, because of ‘supervening events’, which means something happened after agreeing the Consent Order which made it unworkable or unfair. This is called ‘Supervening Events’ and it is the third of four ways in which a Consent Order can be challenged. It is also sometimes called a ‘Barder Case’, named after a famous case.

3. Supervening Events & Change in Circumstances

There are situations where something significant happens, after the sealing of the Consent Order , which has the effect of undermining the basis upon which the original order was made.

The most famous case in this category is Barder v Barder (1987) 2 FLR 480. In this case the wife had obtained an order transferring the matrimonial home to her as she was the primary carer for the children. However; within weeks of that Order she killed herself and also the children, leaving the house by a Will to her mother. The mother applied to enforce the order, and the husband appealed against the Consent Order out of time.

The husband succeeded in his appeal. The court decided that the purpose and intention of the original consent order was to provide a home for the wife and the children. Due to the mother killing herself and the children, that goal was frustrated. The Law Lords made clear the principles that would constitute a “Barder” event:

  • New events must have occurred since the making of the original order which invalidate the fundamental basis upon which the order was made; and
  • The new events are so significant, that any appeal would be very likely to succeed; and
  • The new events should occurred within a year of the order being made;
  •  Any appeal against the original order must have been lodged without delay; and
  • The appeal must not prejudice an innocent third party who may have acquired an asset which had been part of the original proceedings.

Every case depends very much on it’s own set of facts and circumstances. Although you might feel that you have a Barder case, I’m afraid it’s one of those highly specialised topics where you will need to get proper legal advice before going ahead. Barder cases really are the territory of a proper experienced solicitor.

To show how complex these cases are, in a Court of Appeal decision in Myerson [2009] EWCA Civ 282, the husband tried to challenge a Consent Order because he said that the 2008 recession had dramatically affected the value of his investments and shares. It was his case that the drop in the value of his assets was so significant that he was now unable to comply with the terms of the original order and to pay his wife the share she had been awarded. It was true that hundreds of thousands of Pounds had been wiped off the value of his assets. But; the Court was not convinced with his argument and they gave a firm indication that his application did not satisfy the ‘Barder’ tests and would not succeed. One of the reasons for the Court reaching this conclusion was, because, they concluded that the value of shares rise and fall and it was known to the parties at the time of the Consent Order that things like this might happen.

However; the court in that case did provide some guidance on how the law would approach supervening events such as this, and also provided a list of categories into which cases must fall, before they can be considered under the Barder event principles. These are:

1)      Where an asset which had been correctly assessed during the trial, changes in value a short time later owing to “the natural processes of price fluctuation”; although the court warned that judges should not be tempted to vary an order solely on this ground;

2)      Where there was a mistaken valuation of an asset at the time of the trial, which if correctly valued would have led to a different result or conclusion. Provided this was an honest mistake, a court can reconsider the order;

3)      Something unforeseen and unforeseeable occurred since the trial which has altered the asset value so dramatically so as to change the balance of assets between the parties. A court could potentially set aside an order in circumstances such as this but these cases are “few and far between”.

The court decided that a 90% drop in the value of the Husband’s investments was a “natural process of price fluctuation” and was sufficient reason for the Court to reconsider the original consent order. 

In my view the court took an overly cautious approach in reaching this conclusion, but it is what it is and it goes to demonstrate that Barder cases are complicated and often what may seem obvious to one person, is viewed completely differently by the courts!

Cyrus Mansouri

The Court of Appeal emphasised the current law whereby judges should be cautious before reopening orders, except in the most exceptional circumstances.

There are four separate reasons which can give cause for challenging a Consent Order. These are summarised as:

  1. Non-disclosure of relevant facts
  2. Fraud & Misrepresentation
  3. Supervising events & significant change in circumstance (see above); or
  4. Undue influence

I have dealt with each of these separately and by clicking the highlighted links, you can start to get into the details of each category and see whether it fits your own circumstances. If you think it does, then perhaps it’s worth contacting us for more specific advice.

Cyrus Mansouri