Giles Robinson, Family Law Partner, discusses recent cases which address whether or not the Covid-19 pandemic justifies re-opening a Financial Remedy Order made in Divorce proceedings.
Two recent cases have seen the courts having to address the question of whether or not the Covid-19 pandemic amounts to a ‘Barder’ event, which, as explained below, is an event which justifies re-opening a Financial Remedy Order made in Divorce proceedings.
In the first, the final Hearing took place over three weeks in early 2020, and the Judgement was formally given on 30th March 2020 – just days after the first lockdown began. The husband was required to pay £64million to the wife, made up of the former matrimonial home and cash.
Later the husband argued that the global pandemic constituted a ‘Barder’ event and that the payment order should be re-opened and re-quantified.
The ‘Barder’ case which the husband used to re-open the finances of the divorce says that an individual may be allowed to bring a late appeal against a Court Order or ask a Court to re-open an Order, provided certain conditions are met:
- New events have occurred since the making of the Order which invalidate the basis on which the Order was made so that, if permission to bring the appeal were given, the appeal would be certain, or very likely, to succeed.
- The new events have occurred within a relatively short time of the Order having been made (probably no more than a few months).
- The application for permission to appeal should be made reasonably promptly in the circumstances of the particular case.
- Granting leave to appeal should not negatively affect anyone else who has acquired an interest in the relevant property since the Order was made.
Courts are very reluctant to re-open Orders or allow a party to appeal late, and this case was no different. The Court emphasised that it would be exceptional for it to agree a variation of the lump sum. The Court recognised that the pandemic had affected different sectors in different ways. It noted the “topsy-turvy financial times in which we now live” and that a valuation undertaken during the course of the pandemic would probably be even more speculative than one done pre-Covid, and would almost certainly be overtaken by events, once again.
In short, the Court determined that, at least in this case, a global pandemic was not a good enough reason to allow the husband to successfully re-open the Order, outside the time limits ordinarily applicable.
In the second case the judge took the view that the Covid-19 pandemic is an extraordinary event, different in nature and scale, to any similar world event in the lifetime of the parties. He decided that the Covid-19 pandemic and its impact on a key asset is a potential ‘Barder’ event, but as in the first case, the husband ultimately failed in his application to have the case re-opened.
The message from these cases is that while it’s possible to argue that a capital financial order in a divorce should be re-opened as a consequence of the pandemic, anyone wanting to do so may well struggle to succeed.
Of course, for anyone with an ongoing financial commitment to a former spouse (eg maintenance), who has found themselves in difficulties (such as redundancy) as a consequence of the pandemic, the approach may be to seek a variation of the original maintenance order – which should be rather more straightforward.
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