What happens if a party dies after a financial settlement?
A Barder event was coined as such by the case of Barder v Barder in 1987 which it was determined that a family law court to exercise its discretion to grant leave to appeal out of time, if certain conditions are satisfied. The conditions were (1) a new event invalidates the basis upon which the order was made or (2) the event occurs within a relatively short period of time.
In the Supreme Court case of Hasan in June 2023, the context of Barder events and the death of a spouse were considered where the Wife appealed a judgement that her claim could not survive the death of her husband and therefore could not be continued against his estate. In her case the wife suggested that the award had been made not on a needs-based award but instead on a sharing basis and therefore should not be disrupted and arose via entitlement and not a personal claim.
It was decided at the Supreme Court appeal that if one of the parties had dies in an application under Part III of the 1984 Matrimonial and Family Proceedings Act , the other party could not pursue an application against their spouse’s estate and therefore accordingly that claim could not survive the death of a spouse under s1(1) of the Law Reform ( Miscellaneous Provisions) Act 1934 as a cause of action. The decision of the court was that the rights for financial relief were personal ones that could only be adjudicated between living parties.
Generally, in order to re-open a matter, there needs to have been fraudulent non-disclosure, material non-fraudulent non-disclosure or mistake. If any of these exist then the court has discretion to make tailored case management directions and orders.
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