The case of Barder shows the rare circumstances in which a divorce award can be varied after it has been made. In the case of Barder, the wife received a settlement which provided for her and her two children.
Sadly, a few weeks after the award was made the wife killed herself and her two children. The husband was given permission to appeal out of time, and the final Order of the court was largely altered in view of the new development.
The case is significant because it decided that a Final Order or even a Consent Order can be appealed after the expiration of the deadline for appeal in certain specific circumstances.
Those circumstances are where all of the following conditions apply to the case:
(i) That the new events invalidated the basis or fundamental assumption upon which the order was made; and
(ii) The new events had occurred within a relatively short time of the order: whilst no precise limit was set down, it was ‘extremely unlikely’ that it could be as much as a year and in most cases will be ‘no more than a few months’; and
(iii) The application for leave to appeal out of time should be made reasonably promptly; and
(iv) The grant of leave to appeal should not prejudice third parties who have acquired interests in property in good faith for valuable consideration;
Challenging Consent Orders and Final Orders is very difficult and it is also a highly specialised area of Family Law. Fortunately this is an area of the law where we have exceptional experience. If this is something that you believe might apply to you, contact us to book a consultation and in the meantime also read through some of the following posts which will explain the topic of Barder Appeals to you in more detail:
The Barder Principle in Appealing Consent Orders
Setting Aside Consent Orders because of Undue Influence or Duress
Challenging or Appealing a Divorce Consent Order
Challenging a Divorce Consent Order because your Spouse didn’t tell the truth
Challenging a Consent Order because of Fraud or Misrepresentation
