The following Family practice note Produced in partnership with Marc Samuels, Niki Langridge and Rhys Taylor MCIArb of The 36 Group provides comprehensive and up to date legal information covering:
The coronavirus (COVID-19) pandemic is an unforeseen global event that has had significant ramifications for society and the economy. Family practitioners are once again debating, as they did in the wake of the 2007-2008 global financial crisis, whether an event of such magnitude is likely to constitute a ‘Barder event’ in financial remedy proceedings before the courts of England and Wales. This Practice Note re-examines that question at this turbulent and unprecedented juncture. It also considers alternative mechanisms for revisiting financial orders, the Re Barrell and Thwaite jurisdictions, as well as the civil law concept of frustration.
If after a full hearing an aggrieved party complains that the judge fell into error, the appropriate avenue for challenging the order is by way of appeal. If, however, the complaint is not that the judge fell into error but rather relates to an unforeseen event or events that have occurred since the order was made, which fundamentally changes a central aspect of that order, then a so-called Barder application may be possible (per Barder v Barder (Caluori Intervening)).
Such an application asserts that new events have invalidated the basis or fundamental assumption on which the financial order was made, making it appropriate to revisit that order. An application can be made in respect of consent orders as well as orders made after a contested hearing. See also
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