How Financial Remedy Orders are affected during Covid-19, including the ‘Barder Principle’

Going through a divorce can be an extremely difficult time, possibly placing you and your family under vast amounts of stress. Situations such as these can be further exacerbated by arranging what happens to your property, as this is usually most families’ main capital asset in financial applications. Looking at this asset can be worrying during these unprecedented times in relation to the Covid-19 Pandemic possibly posing a risk to your property’s worth and especially in relation to Financial Remedy Orders.

According to the Scotland and Fitzgerald (2020), the website Rightmove, reported on the 2nd April 2020 that they were recording several million property searches and enquiries. This suggests there is still a sizable amount of people interested in properties, despite Covid-19.

We also know that as of 13th May 2020 estate agencies are re-opening so hopefully sales will resume – but will it be ‘business as usual’?

 Selling and purchasing properties

Currently, the government’s advice recommends to not go to any house viewings during this crisis. If possible, people should attempt to delay selling or moving whilst Coronavirus measures are in place. All parties involved within these decisions should work together accordingly in order to decide on an agreed delayed date.

If however, it is ‘critical’ that you move into a house due to family or health reasons, or you have already exchanged contracts, then this is deemed acceptable as long as appropriate health and safety precautions are taken.

It is also good to know that many estate agents are currently offering virtual tours over the computer, in order for people to still make an offer on a property and move in once restriction rules are lifted.

Mortgages

Usually mortgage offers expire after 6 months; this obviously becomes an issue in the presence of Coronavirus delays. According to ibid (2020), some UK Mortgage lenders and Building Societies are temporarily extending existing mortgage offers for three more months from their current expiry date. It is recommended to call up your mortgage provider in order to enquire regarding this

In terms of Court processes, most courts will grant extensions to deadlines if they are deemed Coronavirus related. Additionally, HCMTS have confirmed that there are no application fees to apply for an adjournment to your hearing at Court during this time.

Is Your Financial Remedy Order Still Effective?

Understandably those who have already acquired a valuation may feel unsettled during this health crisis. Any valuations obtained prior to Covid-19 may no longer be reliable. It is preferential to wait until this crisis has ended, especially as it is increasingly more difficult to obtain a mortgage.

Whilst many may wish to progress and finalise their financial matters, it depends entirely on the risks that each party are prepared to take. For example, one party member may decide to “re-open” the agreement relying on the “Barder Principle”.

The Barder Principle originates from the case of (Barder v Barder). This dictates that if ‘something’ has recently happened and considered to be “unforeseen and unforeseeable”, this may undermine a settlement. There are four conditions, set by Lord Brandon, which must be satisfied in order to challenge a Financial Remedy Order;

  • New events must have occurred since the making of the Order. This must invalidate the basis of agreement.
  • All new events must have occurred in a relatively short amount of time.
  • The application of leave to appeal must be made promptly after the change in circumstances
  • The grant of leave should not prejudice third parties, if the outcome was changed.

(Vardags, 2015)

However by studying the case case of (Myerson v Myerson) who were a couple which appealed their Financial Remedy Order but did not succeed – In 2008, during the unprecedented UK financial recession crisis, Mr. Myerson’s shareholdings collapsed. However when he appealed this, this did not amount to the Barder Event, as the court decided “Natural processes of price fluctuation in relation to the property market … do not satisfy the Barder Test”.

By studying both of these cases, there is an argument that this worldwide pandemic was unprecedented, leading to a shutdown of businesses and the housing market, this therefore, should not be seen as “Natural price fluctuation”. This leaves many legal practitioners arguing that it is worthwhile to dispute a Finical Remedy Order for the Barder Appeal.

In any case, it is advised that all parties understand the potential risks to safety during the Covid-19 pandemic and how this affects moving amongst properties. Courts and Tribunals have therefore urged people to consider arbitration and mediation in relation to Financial Remedy Cases. Early communication and flexibly within these times is key in most decision making.

Please remember that SMQ are Oxford solicitors that are local and are here to help answer any questions that you have. We also have team members located in Milton Keynes and Bedfordshire. We are declared as “Key Workers” by the government meaning that we are open like usual and will be working our hardest to support all our clients and those seeking legal advice. We offer free 20 minute telephone appointments for all new clients.

By Olivia Mann

Paralegal

References:

Scotland, M.Fitzgerald, R. (2020). Financial Remedies and Moving/Selling a Property in the COVID pandemic [online] Availble:

(https://www.familylawweek.co.uk/site.aspx?i=ed210522).

Vardags. (2020). The Barder Principle and its uses. [online]. Available at: https://vardags.com/family-law/the-barder-principle

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