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Covid – setting aside final finances orders and anonymity

Date posted: 18 February 2022

Aysen Soyer, Partner in the family department considers this recent case BT v CU [2021] EWFC 87 where the national lead judge of the Financial Remedies Court, Mr Justice Mostyn  clarified two important areas in family law; (i) COVID-19 is unlikely to constitute a ‘Barder’ event- an event which is unforeseen and unforeseeable and which undermines the basis of a final financial remedy order, and (ii) anonymity in financial remedy judgements is no longer the starting point.

 

The facts are as follows: in October 2019 a final finances order divided matrimonial assets of £4.75m as to 58% to the husband and 42% to the wife; including a series of 5 payments to her from November 2019 until November 2023, totalling £950,000.  The husband retained the most valuable asset, a business providing school meals.  When the global pandemic necessitated the closure of all schools in the UK in March 2020 the husband applied to the court to set aside parts of the final order on the basis that the national lockdowns were unforeseen and constituted a ‘Barder’ event.

 

Mostyn J found that it was unlikely that COVID-19 could be a qualifying event under the case of Barder v Barder [1988] AC 20, [1987] 2 FLR 480, but it would depend on the facts of the case.  He cited the 4 conditions which must be established; including that the ‘event’ has occurred since the making of the order invalidating the basis upon which the order had been made, and the judge applied doctrine set out by subsequent cases that the applicant must demonstrate that no alternative mainstream relief is available to him which broadly remedies the unfairness caused by the event.  When considering the change in the value of the asset, the court will focus on the economic impact of the event rather than its cause or nature; and a change in value will rarely satisfy the condition. Once the conditions have been met, the applicant must go on to establish sufficient grounds to justify set-aside of the original order.  Here, the husband was able to take advantage of the Government’s furlough and grant schemes, and his accounts showed an increase in net assets.  Schools re-opened by September 2021 and so the pandemic impact on the business ended.  The court found that unwelcome movements in turnover were not unforeseeable, nor had they invalidated a fundamental assumption on which the order was based.  The order had recognised that the husband retained a risky asset.  The judge noted other grounds which may have been available to the husband and concluded there were no alternative remedies.

 

On the matter of anonymity, (although in this instance he granted it for the husband) Mostyn J stated; ‘ I no longer held the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over details of the case in the court’s judgement…. It should be clearly understood that my default position from now on will be to publish financial remedy judgements in full without anonymization, save that any children will continue to be granted anonymity.’

 

If you require assistance in a financial remedy case, please contact Mavis on 020 8885 7986 for an appointment with Aysen.