Last summer, a news story hit the headlines about an heiress who will not have to pay her husband such a large lump sum within their divorce after she discovered, following his suicide, he had left their children nothing.
The case of WA v The Executors of the Estate of HA and Others is an interesting confirmation of what we call a 'Barder event'. It was a tragic situation, where the former wife (reported WA) and her husband (HA) separated and the husband took it very badly; he was devastated by the breakdown of the marriage. The wife was a wealthy heiress, worth a lot of money in her own right and subject to the benefits of an income from a trust.
The marriage broke down in the early part of 2014 and ended in a divorce. A financial order through the court was made, which awarded the husband the lump sum payment of £17.34 million. This was to be paid in two instalments of £8.67 million.
The first tranche was paid in November 2014, but 22 days after the making of the financial order, the husband committed suicide. He left three children under the age of 14.
The wife was surprised to note that he had left everything in his Will to his adult brothers rather than to the children. He had written to his brothers confirming that under no circumstances could any of the money go back to the wife, even if it were for the benefit of the children, saying "it is my money and a reward for the pain of recent months. Please use it for the benefit of friends and family."
If a relatively extreme change in circumstances such as this occurs very swiftly after a final financial court order, then the parties can apply for permission of the court to have the order reviewed under the principles known as 'Barder'. The wife did this and was successful. This reduced the required pay out from £17.34 million to just £5 million.
For a 'Barder event' to change a financial order, the court has to be convinced of certain issues. The event must take place very soon after the order is made and an application to the court to review matters must be made very promptly in the circumstances. The event has to invalidate the basis upon which the order was originally made and the event cannot have been foreseeable. If there is any delay in terms of trying to change the content of the order, then it will be far more difficult, but if the circumstances are sufficiently extreme and third parties are not prejudiced, then the court will give consideration to such an application.
This ruling does not really change the basis of the law outlined in the Barder case from 1998, and we can assume that the fundamental basis on which the order was made - i.e. to meet the needs of the husband - were clearly invalidated by his unexpected death.