Key Takeaways
- A Barder event is a new, unforeseen development after a financial order on divorce that undermines the basis on which the order was made.
- The test comes from the House of Lords decision in Barder v Barder (1987) and is deliberately difficult to meet.
- The event must usually happen within months of the order, the application has to be made promptly and innocent third parties mustn’t be prejudiced.
- Falls in asset values have generally failed as Barder events, including after the 2008 financial crisis and, in the reported cases, the Covid pandemic.
A financial order on divorce is meant to be final. Once the court has approved a settlement, both partners are expected to move on. The law places real weight on that certainty. But occasionally something happens soon afterwards that makes the settlement look not just unfair, but absurd.
English family law has a narrow exception for exactly that situation. It’s known as a Barder event, after the case that created it, and it allows a settled order to be reopened when a later development has knocked away the foundations it was built on. The exception exists, but it’s used sparingly, and the courts have repeatedly stressed how high the bar is.
This article explains where the principle comes from and the conditions an application must meet. We’ll cover why market falls have usually failed and how applications are made today. Osbourne Pinner offers a free 30-minute consultation with its financial settlement solicitors for anyone considering whether an order in their own case can be revisited.
Where the term comes from
In Barder v Barder, decided by the House of Lords in 1987, a husband agreed to transfer his share of the family home to his wife so that she and their two children would have somewhere to live. Only weeks after the order was made, the wife killed both children and then took her own life.
The House of Lords allowed the husband to appeal out of time. The order had been made on the fundamental assumption that the wife and children would need a home for years to come. That assumption had been destroyed, and the court held that fairness required the order to be revisited.
The four Barder conditions
Lord Brandon set out four conditions that an applicant must satisfy. They remain the starting point today:
- New events have occurred since the order that invalidate the basis, or fundamental assumption, on which it was made.
- The new events occurred within a relatively short time of the order. Lord Brandon said it was extremely unlikely this could be as much as a year, and in most cases it would be no more than a few months.
- The application is made reasonably promptly in the circumstances of the case.
- Reopening the order would not prejudice third parties who have acquired interests in the property in good faith and for value.
Later cases have added two refinements.
First, the new event must also have been unforeseen and unforeseeable when the order was made. This point was analysed closely by Mostyn J in DB v DLJ in 2016.
Secondly, even when every condition is met, the court retains a discretion to refuse relief. For example, where the parties agreed a framework that already allocated the relevant risk.
Why so few applications succeed
The courts treat finality as a matter of public policy. If orders could easily be reopened whenever circumstances shifted, no settlement would ever be secure, and every divorce would carry the risk of a second round of litigation.
The scale of the system shows why that matters. The Ministry of Justice’s Family Court Statistics Quarterly recorded 12,764 financial remedy disposal events in January to March 2026 alone. No official figures are published on Barder applications, but reported successful cases are rare by comparison. The strictness of the test is deliberate: it keeps the exception for genuinely extraordinary situations.
Market falls and the Covid pandemic
The most common argument, and one of the least successful, is that assets have lost value since the order. After the 2008 financial crisis, a husband in Myerson v Myerson sought to reopen an order after the value of his shareholding collapsed. The Court of Appeal refused. Price movements, however dramatic, were treated as part of the natural process of markets, which are foreseeable in principle, rather than as a Barder event.
The pandemic tested the principle again. In HW v WW in 2021, the court accepted that Covid could in principle open the door to a Barder claim. It refused the husband’s application all the same, finding that his business remained viable and profitable on a smaller scale and that the impact had not been wholly unforeseeable. The court also noted that there had been no flood of pandemic-related applications, which suggested the exceptional nature of the jurisdiction was holding.
What has been argued as a Barder event
Barder itself remains the clearest example: the death of a party soon after an order, where the order assumed that party’s needs would continue for years. Other developments have been argued, including:
- A party remarrying or cohabiting shortly after an order that assumed long-term need
- Receiving a large inheritance
- Sudden, significant changes in the value of assets
The outcome in each case depends on whether the event goes to the heart of the order. A development that simply makes a deal look worse in hindsight isn’t enough. It has to remove the fundamental assumption on which the court, or the parties, proceeded.
How an application is made today
For many years, Barder cases were brought as appeals out of time. Since October 2016, the Family Procedure Rules have provided a specific power to set aside a financial remedy order under rule 9.9A where no error by the court is alleged.
Barder events now sit in the same category as fraud, non-disclosure and mistake, and the court can set aside part of an order rather than all of it. An appeal remains the route where the complaint is that the judge got the decision wrong.
It’s important to note that speed is critical. Delay can defeat an otherwise strong case, because promptness is one of the conditions. An applicant will need clear evidence of the new event, why it was unforeseeable and how it undermines the order, and should expect the other party to argue that the settlement already accounted for the risk.
Barder events and non-disclosure are different
The two are often confused. A non-disclosure challenge concerns information that existed at the time of the order but was hidden. That could be an undeclared account, for example.
Since the Supreme Court’s decision in Sharland v Sharland in 2015, an order obtained through fraudulent non-disclosure will usually be set aside unless the concealment made no difference. By contrast, a Barder challenge concerns something that happened after the order and couldn’t have been known.
The distinction matters because the tests are very different. A partner who has been misled is generally in a much stronger position than one relying on an unforeseen later event.
What this means for settlements
The practical lesson is that the Barder principle should never be treated as a safety net. Risks that can be anticipated are better dealt with in the order itself. That could be through:
- Up-to-date valuations close to the date of the order
- Careful drafting of staged payments
- Clear records of the assumptions both parties are relying on
A properly drafted financial order, often including a clean break, gives both partners the certainty the courts are so keen to protect. If you want to find out more, our complete guide to divorce financial settlements explains how those orders are reached.
Speaking to a solicitor about reopening a financial order
Applications to reopen a settled order succeed only rarely, and the time to act is short. Anyone who believes a later event has undermined their settlement needs early advice on whether the Barder conditions are likely to be met and on the risks of making an application.
Osbourne Pinner’s financial settlement solicitors advise on challenging and defending financial orders, including Barder applications and set aside applications based on non-disclosure. The firm’s analysis of official divorce and financial remedy data is published on its divorce statistics page.
This article is for informational purposes only and does not constitute legal advice. Readers should speak to a qualified solicitor for advice on their own circumstances.
Osbourne Pinner offers a free 30-minute consultation, Monday to Friday, by video call or at its offices in Piccadilly Circus, Canary Wharf, Wimbledon, Harrow or Manchester. To arrange a consultation, call 0203 983 5080, email [email protected] or complete the form below. The firm does not offer Legal Aid.
