COVID-19: Does The Pandemic Classify As A Barder Event?

• Published date: 25 August 2020
• Subject Matter: Family and Matrimonial, Coronavirus (COVID-19), Divorce, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: Gall
• Author: Ms Caroline McNally and Catherine Tso

Upon divorce, the Hong Kong Court has the power to make orders for financial provision between spouses. In making such orders, the Court has a duty to consider various matters which are set out in Section 7(1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 ("MPPO") including the parties' financial resources and all the other relevant circumstances of the case.

Parties are under a strict duty to make full and frank disclosure of their financial circumstances which will form the basis on which parties will reach an agreement or the Court will make an award.

The COVID-19 pandemic has brought into sharp focus the issue of whether the underlying basis on which agreements have been reached or orders have been made has now been fundamentally undermined due to circumstances which were completely unforeseen.

The leading case on this issue is Barder v Barder (Caluori intervening) [1987] 2 All ER 440 and what has become known as the 'Barder principle' allows a court to exercise its discretion to grant permission to appeal out of time against the order, if certain conditions are satisfied.

Barder v Barder (Caluori intervening) [1987] 2 All ER 440

The husband and wife reached an agreement in respect of their finances on divorce and an order was made in full and final settlement of all the claims against each other. Under the order the husband was to transfer his interest in the former matrimonial home to the wife within 28 days.

Five weeks after the order was made, but before the property transfer was completed, the wife killed their two children and committed suicide. The wife had a will which left her estate to her mother. The wife's mother sought to enforce the order. The husband applied for permission to appeal out of time against the order.

The House of Lords allowed the husband's appeal and set out the following four conditions that need to be satisfied to succeed in an application for permission to appeal out of time against an order:

1. New events must have occurred since the making of the order, which invalidate the basis, or fundamental assumption, on which the order was made, so that, if permission to appeal out of time were to be granted, the appeal would be certain or very likely to succeed.
   
2. The new events should have occurred within a relatively short period of time since the order was made In most cases it would be no more than a few months.
   
3. The application for permission to appeal out of time should be made reasonably promptly.
   
4. ...