Wife’s successful appeal for variation of financial order on the basis that husband’s inheritance was a ‘Barder’ event.

A Barder event is a principle that was established in the case of Barder v Barder (Calouri intervening) [1987]. This principle, means that in certain circumstances, if ‘qualifying’ post-financial order events (known as ‘Barder events’) are present, the court can grant permission for either party to appeal the financial order made despite the fact they are ‘out of time’ to do so.

The conditions that would have to be satisfied before the court would grant permission to appeal out of time are as follows:

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.

In the recent case of Critchell v Critchell [2015] EWCA Civ 436, the wife sought to appeal a financial order which had been agreed on the basis that within a month of the order the husband received an inheritance from his father of £180,000. The wife argued that this was a Barder event which invalidated the basis upon which the financial order had been made.

The original order provided that the wife retained the former matrimonial home (worth £190,000) and there was a charge in favour of the husband of 45% of the equity in the property.

Her Honour Judge Wright allowed the wife’s appeal and varied the consent order by extinguishing the husband’s charge over the former matrimonial home. Her Honour Judge Wright considered the four conditions in Barder and held that the husband’s inheritance had invalidated the basis of the consent order.

Lady Justice Black agreed with the reasoning of Her Honour Judge Wright in that the impact of his inheritance so soon after the order was that the husband no longer needed his charge on the matrimonial home to discharge his existing debts and this was considered a fundamental change in the needs of the parties.