A famous family law case Barder v Calouori  AC 20, coined the term “Barder event” and in the words of Lord Justice Munby, this is now a case then “so well-known it hardly requires quotation.”
The relevant facts were Wife killed herself and the children of the marriage only five weeks after the final matrimonial order on divorce had been drawn. The original Order ordered that the former matrimonial home should be transferred to the Wife on a clean break basis, by consent. The House of Lords granted permission to Mr Barder to appeal out of time in order to overturn the original Order.
Lord Brandon in the case gave the leading judgement and set out four conditions which have to be satisfied in order for such an application to be successful:
- The “new event” must invalidate the basis or fundamental assumption upon which the Order was made;
- The “new event” must occur within a relatively short period of time from the date of the Order – there is no precise time limit;
- The application for leave to appeal out of time must be made reasonably promptly; and
- The grant of leave to appeal should not prejudice third parties who have acquired an interest in the property in good faith for valuable consideration.
It is therefore quite exceptional for a case to satisfy all four conditions.
Since this case there have been several cases which indicate that the unexpected death of a party shortly after the matrimonial finance Order, is likely to be a “Barder event” and therefore result in a successful appeal with different terms being ordered in favour of the surviving former spouse.
The leading cases to demonstrate this are Smith v Smith (Smith and Others Intervening)  Fam 69. Barber v Barber  1 FLR 476 and Reid v Reid  EWCH 2878 (Fam) and more recently Richardson v Richardson  EWCA Civ.
In the case of Smith v Smith, the parties were married in 1955 and lived in a house bought in the sole name of Husband. In 1988 following the breakdown of the marriage the Wife petitioned for divorce.
The matrimonial financial claims were dismissed with an Order that the Husband pay the Wife a lump sum of £54,000.00 (approximately 50% of the matrimonial assets.) Within 6 months of the Order, the Wife committed suicide and left her whole estate to her daughter as the sole beneficiary.
The Husband then applied for leave to appeal out of time and the appeal was allowed. The case was heard by Lady Justice Butler-Sloss who applied the Barder v Calouori conditions (set out above) to the facts. She noted that in the case of Barder v Calouori
“the Order was set aside retaining, however, to the estate the Wife’s pre-existing share before the section 25 [Matrimonial Causes Act 1973] assessment was carried out.”
The important part of this Judgement I believe is when she states:
“the correct approach is to start again from the beginning and consider what Order should be made on the facts before the Judge… The issue now is as to the right Order to be made between the spouses where the Wife is known to have only six months or so to live.”
Lady Justice Butler-Sloss considered that due to the fact of the Wife’s death, she did not have a future income or capital need, but she did have a right to the recognition for her contribution to the marriage, and reduced the Wife’s (namely the estate’s) entitlement from a lump sum of £54,000.00 to £25,000.00.
The next reported case to deal with this issue was the case of Barber v Barber  1 F.L.R 476. When the original matrimonial Order was made, the Wife was aged 41 years and suffered from severe liver disease. The original Order made provision for the Wife to receive maintenance on the basis that she would live for five years. It also provided for the former matrimonial home to be sold and for the Wife to receive £125,000.00
The Wife only lived 3 months after the original Order was made and the Court of Appeal held that the Wife’s death was unforeseeable and following Smith v Smith, that the correct approach was to start again and consider what Order should be made by the Judge in the knowledge that the Wife only had three months to live – rather than 5 years.
L.J Glidewell took the view that the best way to balance the facts that the Wife had no future need, the Husband had a greater responsibility to the children, and the Wife’s contribution to the marriage over 16 years, was for there to be no sale of the property, and for each of the children to have a 20% interest.
The next reported case to deal with this issue of death being a Barder event, was the case of Benson v Benson  1 F.L.R 692. In December 1992, a Consent Order was sealed by the court, and shortly after the Wife was diagnosed with suffering from terminal cancer. She died in June 1993. In the month following the death, the Husband reached a compromise the Wife’s estate’s Executors.
In 1993 the Husband made an application for leave to appeal out of time for an appeal against the Consent Order, and the application was dismissed because the court was not satisfied that the Wife’s death met all the Barder conditions. The court was not convinced that the application was made reasonably promptly in that the Wife died in June 1993 and the Husband had delayed until September 1994 to make the application. This is pertinent to the third Barder condition/test set out by Lord Brandon. Whilst there is no statutory definition of “reasonably promptly” this case shows that this period of time was deemed too long by the court.
The next reported case that dealt death being was the case of Reid v Reid (2003) EWHC 2878 (Fam) and was dealt with by Mr Justice Wilson. This was the Husband’s application for appeal, following the Wife’s death, at the age of 74 years, two months after the date of the Original Order.
The Husband contended that the Wife’s death amounted to a “new event” which invalidated the basis upon which the Order. The Wife’s Executors disputed that the death amounted to a “new event” and also disputed that if it did, it did not invalidate the basis of the original Order.
An interesting point in this case is Mr Justice Wilson’s emphasis on Bracewell J’s comment in the case of White v White  AC 596. Bracewell J stated:
‘Since the case of Barber….the jurisprudence has developed and I am satisfied that, although Barder….did not specifically refer to foreseeability, it is implicit in the circumstances of that case that the death of the mother and children was not reasonably foreseeable and in effect came as a bolt of the blue.’
Therefore, it appears that the “new event” must i) not be reasonably foreseeable, ii) must invalidate the basis of the original Order and iii) must occur within a relatively short period of time from the date of the Order.
Mr Justice Wilson found that the Wife’s death two months after the Order was made was not reasonably foreseeable and then turned to the question of whether the “new event” being the Wife’s death, invalidated the basis of the original Order. Mr Justice Wilson followed L.J Butler-Sloss’s reasoning in Smith v Smith and asked the question
“what would have been of the appropriate Order in October 2002, if it had been known that the Wife had only two further months of life?”
Mr Justice Wilson found that the contraction on the length of the Wife’s future needs would have lead to a significantly different result. Mr Justice Wilson allowed the appeal by setting aside the dismissal of the Husband’s claims and allowing a payment of £37,000.00 from her estate to him. The original Order gave to the Wife a settlement of £99,000.00.
The most recent case concerning death as a Barder event was the case of Richardson v Richardson  EWCA Civ.
In September 2009 the Wife was awarded 47.5% of the matrimonial assets and then died of a heart attack two months later. At the time of the matrimonial proceedings there was an outstanding claim for damages against the business, but no reference was made to this at the final hearing. The Husband assumed that the business insurance would cover this potential liability, if it was realised.
In December 2009 the Husband learnt that his insurance cover was limited to £2,000,000.00 and that his insurers sought to avoid the policy. On 14 April 2011, the Husband applied for permission to appeal out of time and on 7 May 2011 this was granted. The Husband appealed against the Order, on the grounds of i) the Wife’s unexpected death amounted to a Barder event, and ii) the issues with his insurance company also amounted to a Barder event.
Leading judgement was given by Munby LJ and the appeal was allowed and the original Order varied so that the potential damages liability would be shared between the Husband and the Wife’s estate equally. In relation to the Wife’s death being a Barder event, it was found that it did not constitute a Barder event, as the Wife had earned her equal share to the matrimonial assets and the original award was not based on needs.
LJ Munby stressed that
“it is not enough to show that one of the parties died unexpectedly, very shortly after the hearing. What has to be shown to quote Lord Brandon is that the death “invalidate[s] the basis, or fundamental assumption, upon which the Order was made’’”
He held that all the previous cases similar to this, the Wife’s future needs had been central, or a critical factor in assessing quantum
“after all the needs of the Wife who in the event has lived only a matter of weeks are very different from – much less than – the needs of the same Wife as assessed on the footing that she will live for years rather than weeks”.
He also commented that an early death, does not entitle the surviving Husband to re-open the matter. The death is simply not a Barder event. The Wife’s death does not change or alter the Husband’s needs or the Wife’s entitlement to share equally the assets.
In terms of policy, LJ Thorpe commented that
“cases in which a Barder event can be successfully argued are extremely rare, should be regarded by specialist profession is exceedingly rare, and should not be thought to be extendable by ingenuity”. Therefore we have a clear warning that these cases are difficult to run despite the fact that four of the five cases I have mentioned have been successful.
For practitioners, for which I hope this is a helpful summary of the law, the common principles to take are as follow:
- When acting for surviving spouse act promptly. A delay of 5 months from death to issue probably too long (Richardson v Richardson)
- If your client has properly negotiated and agreed a compromise with the estate you must expect this to be binding and potentially undermine your Barder application.
- Have to hand Lord Brandon’s test with the extra limb that the death must not be reasonably foreseeable at the time of the original Order.
- Ask yourself the Smith v Smith question ‘would the award be the same if the deceased spouse was known to have only x months to live’.
- If the award in the original Order was based on entitlement and not on need – proceed with caution. If the award was based on need consider what the award would be on an entitlement only basis. This is likely to be how the court would consider it on appeal.
If you require any further information about this topic please contact Justine Osmotherley l on 0113 336 3323 or firstname.lastname@example.org
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