Declining assets are unlikely to pass the Barder test, says Catherine Costley
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With the credit crunch biting hard and the global economy in decline, the Court of Appeal's judgment in the case of Myerson v Myerson [2009] EWCA Civ 282, [2009] All ER (D) 05 (Apr) failed to bring relief for divorcing clients who, in more settled times, had agreed settlements involving risky assets. There are no easy solutions for clients returning to question the validity of agreements which now look like very bad deals as it is highly unlikely that the falling value of assets will be considered a Barder event (see below) which changes the basis of a financial order. Although the court may have a certain amount of sympathy for those who have lost out because of fluctuations in value, the principle of certainty and finality of capital orders will generally be upheld even in these troubled times.
Background
The original order which was made by consent after agreement was reached at the financial dispute resolution (FDR) hearing saw the total marital assets of c£25m
