Hi Amanda
Many thanks - this is very useful. Could you explain what a "Barder" event is please? I know I have a case for negligence but how do I go about finding someone who can help? I do not have funds and would be eligible for Legal Aid were it not for my home being the only asset! This is a minefield but I am slowly working my way through... Any pointers will be looked into. Thanks Debs.

Hi debsn,

At the risk of treading on Amanda's toes........

A Barder event comes from the case Barder v Cakouri [1988] where Lord Brandon said that a court can grant leave to appeal out of time against an order for financial provision or property transfer made after a divorce on the ground of new events under certain conditions:

1 New events have occurred since the making of the order that invalidate the basis or fundamental assumption upon which the order was made

2 The above new events should have occurred should have occurred within a relatively short time of the order having been made (probably a few months and unlikely to be as long as a year)

3 The application for leave to appeal out of time is made promptly

4 Grant of leave to appeal should not prejudice third parties who have acquired in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.

Barder events and cases:

Death of one party - Smith v Smith (Smith and other intervening) 1992 Fam 69

Remarriage of one party - Williams v Lindley (formerly Williams) 2005

Reconciliation does not appear to be a Barder event, neither is redundancy Maskell v Maskell

If leave to appeal is granted the case is reconsidered in light of all the circumstances at the time of the appeal Smith v Smith (Smith and others intervening) 1992

YA

Hi DL

Thanks for your offer of help.

The problem is I don't know which of the principles he will be relying upon !

His Form E, (what there was of it handed to me just before we went in ) states he wants a clean break order and an equal share in the proceeds of the sale of the matrimonial home which was sold 3 years ago once sep agreement signed.

The judge ran the first appointment from my Statement of Issues which stated that there was no reason to depart from the Separation Agreement of 3 years previous (clarifying legal advice, disclosure, signed witnessed, and no duress)

His (young nervous ) solicitor admitted to the judge she had only become aware of the agreement 10 mins ago......

(She said to me before we went in - "he hasn't signed it" I gave her a signed copy, she said "He hasn't filed it with us" to which I replied 'not my problem'...)

STBX said the separation agreement 'was unfair', at which point he was asked by the judge if he had taken legal advice...

The sep agreement was drawn up by his solicitors mother, who heads the family dept....

The judge laughed and said that if he was saying he had been given bad advice that that would be a very difficult and costly route to go down...

It would have been hilarious if it had been someone elses case, but it was mine !!

(The court usher informed me that my particular judge was VERY pedantic but that I shouldn't let it worry me )

The 14 point directions from the court begin with;

AND there being a dispute between the parties as to whether an agreement between them should be taken into account as relevant conduct:

THE COURT DIRECTS that:

1. The parties make standard disclosure by delivering to each other by (date) copies of all relevant documents, waiving privilege attaching to the advice given by solicitors in relation to the agreement.

Further down it says we may not rely on any evidence (at the hearing which will be months away) not submitted, so I don't want to miss anything but because it's so wide open I'm not too sure what to get.

The judge suggested that she (his sol) take advice from barristers, that her sworn statement would need to be ­base­d on Edgar Principles and that he would consider making an order for costs later on.

He didn't have the same conversation with me but rightly or wrongly I came away feeling confident because he addressed the issues I wanted.

So I intend, unless anyone tells me otherwise, to get copies of documents from the solicitor that acted for me - there won't be much. And I shall ask the person who witnessed my signature to write something (not sure what yet) and then give them to his sol.

He then has to serve a sworn statement, after which, I get the opportunity to reply some weeks later.

My biggest gripe with all of this is that it's going to take at least until November before we even get given a date for hearing and if his sol 'had been round the block a few times' she would be telling him he had no case whatsoever thus saving HIS money and ALL MY TIME at Litigants rates of £9.50 per hour glued to wiki !! (The dust is mounting up as well as several episodes of Eastenders.. )

Any thoughts

poppy
x

I'd be interested in further replies mainly because I was pressurised into signing. Also since signing my circumstances have changed asset wise and there is a good chance that 'gifts' have been made to her to avoid inherritance tax. My solicitor has advised that separation agreements are not 100% legally binding and its up to the judhe to see if they feel whether given circumstances it is fair or nor. My understanding was that the separation agreement was a starting point. Maybe I can get my doc to sign me off as insane !!!!

Hi Poppy

It is very telling that his own solicitor had not seen the agreement - clearly at that point he had not been advised as to whether or not it was binding because obviously a solicitor cannot advise on a document he or she had never seen.

Secondly, if he is trying to go against that agreement the firm that are acting for him are in a difficult position if they advised him on it at the time, and should in reality back out if his case is that it should not be upheld for some reason now.

Thirdly, as you have lived under it for three years, there is a measure of acceptance of the agreement, which is very important and something you need to cover in your statement.

In terms of not being allowed further evidence later on - well, you can always apply for leave to rely on any evidence at a later stage and it is rare that the door is kept firmly shut.

In respect of what the judge said to him regarding a barrister - he didnt need to say it to you, which is why he didnt. Basically what he was saying is "you are stuffed mate, unless you find some very clever wiggy that can come up with a very good reason as to why I should not uphold this".

In terms of going forward, you should obtain your file from the former solicitors and file and serve any relevent docuemnts that are contained within it - that is the first bit of the order you have posted. It is rare to disclose docs that show what advice you have been given, but to be honest the court are more interested in what advice he received, rather than you as it is he that is saying he wants to go behind the agreement. You may actually find that with some full and frank legal advice now that they know of the agreement, he may well back out of all of this.

If he doesnt you should do your statement on the Edgar principles - i.e. do subheadings for each one and then point to where his case fails on each one, referring to the documents that he will disclose, as well as your own disclosure.

Amanda

Hi Amanda

Thanks so much - I am filled with confidence now and know I am on the right track.

"Wiggy" that made me laugh - is that what you call a barrister ? We should have a thread running on nicknames for the legal profession ?

I'll do that now !

poppy
x

My ex and I agreed on and signed a separation agreement,( not legally drawn up) saying both had taken legal advice, that he would pay a monthly sm- no end date specified-and that he would not claim on my property, ( owned by me solely for years before marriage).We lived by this agreement for 10 months, but he now is living with new partner. I know he saw his solicitor, and had general financial advice,prior to signing agreement, but do I have to prove it was specific to our actual agrement? They now say he did NOT receive legal advice, which I think is one of the Edgar Principles they are relying on.