In an article in The Times, Stephen Foster considers whether recently divorced couples whose personal circumstances have changed significantly as a result of the Coronavirus pandemic will be able to revisit their financial settlements.
Stephen explains that, in exceptional circumstances, financial orders are capable of being set aside on the grounds that something unforeseen and unforeseeable has occurred which invalidates the fundamental assumption on which the order was made. “This is known as a Barder event,” says Stephen, “and one might well ask what would qualify as such, if not the Coronavirus pandemic and its devastating economic impact?”
Stephen says it is notoriously difficult to succeed on a Barder argument. The 2008 global financial crisis triggered several Barder applications, but they failed as the court’s view was that by their very nature markets fluctuate, as do the value of businesses and shares.
In considering whether the two crises are distinguishable, Stephen concludes that “there is undoubtedly a case to say that this pandemic and its ramifications are wholly different in nature, and likely also in scale, to the 2008 financial crisis”.
Does this mean every recently divorced individual who has suffered financial loss due to Covid-19 will be able to set aside their settlement? “Far from it,” says Stephen, as “the courts have made clear that cases in which a Barder event can be successfully argued are extremely rare… As ever, every case will turn on its own unique set of facts.”
Stephen concludes by saying that the courts are always reluctant to set aside orders as to do so would run the risk of “opening the floodgates” and overburden a grossly underfunded court system.
You can read the full article here. (subscription required).
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