The Supreme Court’s judgment in Hasan was handed down on 28 June 2023. Most readers will by now be at least peripherally aware of what the case was about. This article is to some extent a continuation of a blog post written by one of the authors for this publication in July 2023.1 That blog post addressed the Barder conundrum:2 the vexed question of what exactly the court is doing when determining Barder set aside applications if a matrimonial claim ‘abates’ with the death of a party. If the claim has abated, where is the jurisdiction to set it aside? For the sake of concision, this article assumes the reader has read the blog post referred to above and is familiar with the basic facts of the Hasan appeal. A summary of the Supreme Court decision prepared by one of the authors can be found on the FRJ website.3

This article, which considers the Barder conundrum, is broken into two chunks. First, we investigate the statutory basis for whatever the court is doing during a Barder set aside after a party has died. Secondly, we look at the scope of the conundrum, and consider quite how wide its application may be.

Recap – the basics of set aside applications

Two questions: whether and what next?

By way of a brief recap, set aside applications pose two overarching questions: (1) ‘whether’ to re-open, i.e. do the facts relied upon make out a ground justifying the setting aside of the order? If so, (2) ‘what next’; what procedure should the court adopt, and how should it re-exercise its evaluative and discretionary sinews to reach a new fair conclusion?

The law in relation to the first question (‘whether’ to re-open) is well-trodden and highly fact specific. In the context of this article,4 orders will only be re-opened where one of the following tightly defined grounds can be established: fraudulent non-disclosure, material non-fraudulent non-disclosure and mistake. As to the second question (‘what next’), the procedural element has recently been reviewed by the Court of Appeal in Goddard Watts v Goddard Watts [2023] EWCA Civ 115, which confirmed the court’s discretionary approach: there is ‘enormous flexibility’ and case management directions should be bespoke. The substantive component (what orders should be made) will similarly be case-specific.

However, in Hasan, the appellants identified a trend in Barder cases involving a party’s death:5 where the deceased had received a needs-based award, the court might set aside under Barder, whereas if the award was premised on sharing, the order would not be disturbed. The appellants argued that this demonstrated the court’s recognition that a sharing award arose by way of entitlement rather than a ‘purely personal’ claim.

Procedural basis

The applicable procedural rules are at Family Procedure Rules 2010 (SI 2010/2955) (FPR) 9.9A, inserted by a rule change in 2016. FPR 9.9A permits challenges to orders where no error of the court is alleged to be made by way of the set aside procedure, by the issue of a Part 18 application, listed before the first instance court. A Barder application can also, at least theoretically, be advanced by way of an application for leave to appeal out of time – FPR 9.9A(2) is drafted permissively (a party may apply under this rule). In practice, however, a Barder challenge is invariably pursued as a set aside.

The court’s statutory power to set aside depends on where the original order was made. Where the order was made in the Family Court, the applicable provision is s 31F(6) Matrimonial and Family Proceedings Act 1984 (the 1984 Act), as inserted by s 17(3) Crime and Courts Act 2013 (which established the Family Court). If the order was made in the High Court, the statutory provision is s 17(2) Senior Courts Act 1981 (the 1981 Act).

Conundrum 1 – what power is the court exercising in a post-death Barder appeal?

In Hasan, the Supreme Court determined that a contextual and textual interpretation of the relevant statutory provisions clearly established that Parliament did not intend for an undetermined Part III claim (and by association a conventional matrimonial claim under the Matrimonial Causes Act 1973 (MCA 1973)) to survive a party’s death.

What, then, is happening in a post-death Barder determination? In Hasan v Ul-Hasan (Deceased) & Anor [2021] EWHC 1791 (Fam) (the first instance decision), Mostyn J pointed out that in Barder, Lord Brandon held that having set aside an order, the court was not obliged to restore the parties to their earlier proprietary interests, but could vary the original order and make alternative dispositions. Mostyn J posed two questions: (1) what power was the appeal court applying when it did so; and (2) what discretionary power was it wielding when re-determining a case post-death? After a review of the authorities, Mostyn J concluded that the only explanation for this was that the cause of action had survived the party’s death, which ‘triggers the ss. 23–25 powers and discretion’.

In Barder Lord Brandon commented, ‘… the real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken’. That would depend on three further questions being considered in sequence, i.e.:

(1) The nature of the further proceedings. In Barder, this was an appeal out of time to a judge of a divorce county court against an order made in a divorce suit by a registrar of that court.

(2) The true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. On the facts of Barder, Lord Brandon determined that the right to appeal out of time was a statutory one, and that the relevant provisions were Matrimonial Causes Rules 1977 (SI 1977/344), r 124(1), made under s 50 MCA 1973, together with County Court Rules 1981 (SI 1981/1687) (CCR 1981), Ord 13, r 4(1) and (2). Lord Brandon held that on the true construction of those provisions, the jurisdiction of a judge to entertain an appeal out of time by one party to a divorce against an order or decision made by a registrar did not lapse on the death of the other party.

(3) The applicability of s 1(1) Law Reform (Miscellaneous Provisions) Act 1934 and whether, pursuant to that section, a cause of action arises which would survive the death of a party. In Barder given the determination of the two antecedent questions (as above), the question of the applicability of the 1934 Act did not arise. This was because the determination of the first two questions led to the conclusion that the statutory provisions underpinning appeals out of time in this context permitted such an application after the death of a party. There was no need to separately consider application of the 1934 Act.

As summarised in the blog post, the appellant’s core submission on this point in Hasan was that there is no difference between a determination and a re-determination. They submitted that once the court broke the seal and began to re-determine Barder cases post-death, it was demonstrative of a party’s death not precluding the continuation of that claim.

The respondents submitted that this was a mischaracterisation and that Barder in fact involved a retrospective adjustment of orders that had already been made: in cases such as Smith v Smith (Smith & Ors Intervening) [1992] Fam 69, Reid v Reid [2003] EWHC 2878 (Fam) and Barber v Barber [1993] 1 FLR 476, the court notionally travelled back to the date of the first instance decision and put itself in the ‘hypothetical position’ of a trial judge with knowledge of one party’s imminent death. It did not exercise discretion afresh in favour of or against a dead party, but applied statutory powers (MCA 1973 or Part III 1984 Act), within the context of a permissible appeal which preserved those powers beyond the death of a party. All of this was taking place within the strict confines of the appellate jurisdiction.

The Supreme Court did not expressly endorse either party’s analysis. It responded briefly to the parties’ voluminous submissions on this jurisdictional conundrum at [100], describing Barder applications following a party’s death as a:

‘discrete but limited exception to the general rule that the 1973 Act creates personal rights and obligations which end with the death of a party to the marriage … I consider that this limited exception is not a sufficient basis on which to undertake a radical change to the construction of matrimonial legislation.’

However, post-October 2016 Barder challenges are normally pursued by way of set aside (FPR 9.9A, PD 9A) rather than applying for leave to appeal out of time (FPR 30.7). This means that Barder challenges are now underpinned by a completely different statute. No court since Barder has explicitly addressed Lord Brandon’s second question (the true construction of the relevant statutory provisions) to the different statute that underpins the power to set aside (s 31F(6) 1984 Act). Does a true construction of that provision permit proceedings to continue after the death of a party?

Set aside and appealing

If an application to set aside is no different from an appeal, Lord Brandon’s second question would be answered the same way for both. So is a set aside substantively equivalent to an appeal?

The intertwined relationship between the appellate and review powers of the High Court and Court of Appeal was considered by Ward J in BT v BT [1990] 2 FLR 1. Whilst ‘appeals’ and ‘motions for a new trial’ (i.e. applications to set aside) started as separate concepts, they became enmeshed over the years. Section 30 Supreme Court of Judicature (Consolidation) Act 1925 mandated that all appeals and motions for a new trial should be made to the Court of Appeal, excepting where no error of the court was alleged (Matrimonial Causes Rules 1924, r 46) in which case a Divisional Court could rehear the case (in effect, equivalent to a set aside application under FPR 9.9A). The above provisions were repealed by s 17(1) Supreme Courts Act 1981 (now re-branded as the Senior Courts Act 1981), which required applications for set aside to be made to the Court of Appeal, saving s 17(2) which provided for the High Court to hear a set aside application by judge alone where no error of the court was alleged. Section 17(2) is restrictively rather than permissively drafted: ‘shall be heard and determined by the High Court’.

Consider a thought experiment. Barder was determined in 1988, when the 1981 Act had been in force for 7 years. Would Lord Brandon’s answer to his second question have been different if the challenge in Barder was pursued by way of a motion to the High Court under s 17(2) 1981 Act, rather than an application for leave to appeal out of time, subsequently appealed to the House of Lords? The same substantive relief could have been sought. The only point of distinction would be the fact that an application under s 17(2) did not allege error of the court. But that would make no substantive difference: it was not asserted that the trial judge had fallen into error in Barder. We tentatively suggest that if the same relief was pursued in Barder under s 17(2) rather than Matrimonial Causes Rules 1977 (SI 1977/344), r 123(1), Lord Brandon would probably have reached the same conclusion.

With this in mind, we return to Lord Brandon’s test and a construction of the relevant legislative provisions:

(a) The nature of the further proceedings sought to be taken.

This would be a Barder challenge by way of a set aside application (post the rule changes in October 2016). FPR PD 9A makes clear that Barder event cases are now in the same category as fraud, non-disclosure, mistake and the like, and should be pursued by way of a set aside application. If an error of the court is alleged, an application for permission to appeal under Part 30 should be made.

(b) The true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both.

This relevant statutory provisions would be s 31F(6) 1984 Act (for the Family Court) and s 17(2) 1981 Act (for the High Court).

Section 31F(6) 1984 Act provides:

‘The family court has power to vary, suspend, rescind or revive any order made by it, including—

(a) power to rescind an order and re-list the application on which it was made,

(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c) power to vary an order with effect from when it was originally made.’

Section 17(2) 1981 Act provides:

‘17 Applications for new trial.

(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

(2) As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.’

There is nothing in the wording of these statutory provisions which would appear to prevent an application to set aside an order being pursued notwithstanding the death of one of the parties.

Prior to 22 April 2014 (as explained by Mostyn J in CB v EB [2020] EWFC 72), the procedural rules would have depended on whether the original order was made in the county court (see CCR 1981, Ord 37, r 1(1), as modified by the Family Proceedings Rules 1991) or in the High Court,6 provided that in any proceedings tried without a jury the judge shall have the power on an application to order a rehearing when no error of the court at the hearing is alleged. As noted by Mostyn J in CB v EB, this was so even in Barder cases, ‘notwithstanding that the ratio of the House of Lords in that famous case essentially concerned the principles for granting leave to appeal out of time following a supervening event …’ (at [22]).

Set aside applications continued to involve CCR 1981, Ord 37, r 1(1) until 6 April 2011 when the FPR came into effect. FPR 4.1(6) contained the provision that: ‘a power of the court under these Rules to make an order includes a power to vary or revoke the order’.

As part of the legislation that brought the Family Court into effect, s 31F(6) 1984 Act gave the Family Court wide powers to vary, suspend, rescind or revive any order made by it. The language used is in fact more expansive than the language of CCR 1981, Ord 37, r 1(1). However, as noted by Mostyn J in CB v EB, the ‘effect is the same’. The historical excursus demonstrates that:

‘the set aside power in s 31F(6) was not a brand new break with the past. It did not usher in a brave new world. It was no more than a banal replication of a power vested in the divorce county courts from the moment of their creation in 1968. That power had been confined by the law to the traditional grounds for decades. Interpreting s 31F(6) purposively and with regard to its historical antecedents leads me to conclude clearly that in the field of financial remedies its lawful scope, or reach, starts and ends with the traditional grounds.’ (at [55])

Therefore, does it matter, if a Barder application is brought by way of set aside rather than appeal? Section 31F(6) was not meant to signal a brand new break with the past, but was a (banal) replication of the powers vested in the divorce county courts. Under the old CCR 1981, Barder challenges proceeded in the county courts as applications to set aside an order under Ord 37, r 1(1), where no error of the court was alleged.

The authors are inclined to state, very tentatively, that on the true construction of s 31F(6) 1984 Act: (1) insofar as Barder challenges by way of an application to set aside pursuant to FPR 9.9A are concerned, that they would survive the death of a party; and (2) a set aside application in the context of a Barder challenge is interchangeable with an appeal.

Would the answer to these questions be different if one were considering the power of the High Court to set aside a financial remedy order under the 1981 Act (set asides in the High Court)? The authors do not consider that they would. The same procedural rules apply to a set aside application whether made under the 1984 Act or the 1981 Act. FPR 9.9A makes this abundantly clear, as does PD 9A, para 13.7. Indeed, the rule changes were meant to unify the applicable procedure in respect of set aside applications whether they be pursued pursuant to the powers of the Family Court or the High Court.7

In Gohil v Gohil [2015] UKSC 61, decided before FPR 9.9A came into force, the Supreme Court observed (emphasis added):

‘(c) There is therefore need for definitive confirmation, whether by a rule made pursuant to section 17(2) of the 1981 Act or otherwise, of the jurisdiction of the High Court to set aside a financial order made in that court … It is nowadays rare, however, for a financial order to be made in the High Court: it is normally made in the family court and, when made there by a High Court judge, he or she sits in that court as a judge of High Court level. It seems highly convenient that an application to set aside a financial order of the family court on the ground of non-disclosure should, again, be made to that court and indeed at the level at which the order was made; and this convenient solution seems already to have been achieved by the provision of the Matrimonial and Family Proceedings Act 1984 recently inserted as section 31F(6), under which the family court has power to rescind any order made by it.

(d) The minutes of the meeting of the (Family Procedure Rule) committee on 20 April 2015 have been placed before this court. The committee’s conclusion, which in my view this court should indorse, is that its “Setting Aside Working Party” should proceed on the basis that:

(i) there is power for the High Court and the family court to set aside its own orders where no error of the court is alleged and for rules to prescribe a procedure;

(ii) the rule should be limited so as to apply to all types of financial remedy only;

(iii) …;

(iv) applications to set aside should be made to the level of judge (including magistrates) that made the original order; and

(iv) if an application to set aside can be made, any application for permission to appeal be refused.’

The FPR rule changes were, as indicated above, meant to unify the procedure for set aside applications. Furthermore, as far as the authors can see, there appears to be no discernible difference between the courts approach in cases where an application to set aside has been pursued under the 1984 Act, and in those where an application has been made under the 1981 Act.

We do not consider it necessary to explore the third question posed by Lord Brandon in Barder (the applicability of the 1934 Act) in light of our conclusions in respect of the two antecedent questions.

Conundrum 2 – what is the extent of the ‘discrete and limited exception’?

The Supreme Court determined that Barder challenges after a party’s death are a ‘discrete and limited exception’ to the general principle that matrimonial claims do not survive death. No further detail was given on the scope of this exception. It will obviously apply in a ‘pure’ Barder death scenario (i.e. where the supervening event is the party’s death), as it did before the Supreme Court’s judgment in Hasan. What of other scenarios where a different supervening event is relied upon, but where, separately, a party dies before the determination of the application? In their blog post,8 Michael Horton, Greg Williams and Shrishti Suresh set out the following three hypothetical scenarios, which we quote verbatim:

• Scenario 1: ‘A obtains a significant sum based on the sharing principle but fails to disclose substantial sums in their own name which should have been shared. If A dies, and then B finds out about the non-disclosure after A’s death, why should B not be able to apply to set aside?’
• Scenario 2: ‘A brings a claim relying relying on the sharing principle but B fails to disclose his true wealth. A consent order shares the disclosed wealth equally. B then dies, and A discovers B’s non-disclosure. Can A apply to set aside even though B is dead (after all a claim under the 1975 Act is unlikely to be of any use)?’
• Scenario 3: ‘A and B agree an order and A later applies to set aside for non-disclosure. The court finds that B had failed to give full and frank disclosure, and gives directions for a limited re-adjudication of A’s claims. B then dies. Can A continue her claim against his estate?’

Scenarios 1 and 2 are conceptually similar. The fact that an order is made by consent makes no difference to its susceptibility to be set aside if it is found to be undermined by non-disclosure (Sharland v Sharland [2015] UKSC 60). In both scenarios, the ground relied upon to justify the setting aside of the consent order is A or B’s non-disclosure, not the non-discloser’s subsequent death. There is no Barder supervening event. There has not been a subsequent event that has unravelled the basis on which the order was agreed or made – the non-disclosure left the order vulnerable to set aside from the point at which it was made (Livesey v Jenkins [1985] AC 424). In both scenarios, the application to set aside is not made prior to the non-discloser’s death, so there are no extant proceedings at the point of death. Scenario 3 is slightly different. As before, the ground for the set aside is non-disclosure, not a Barder supervening event. However, here, set aside proceedings have already been commenced, and the court has determined the ‘whether’ question in the affirmative.

Michael, Greg and Shrishti are right to highlight these hypothetical scenarios. They demonstrate how the Barder conundrum is not as niche as first appears. Many practitioners will have been involved in cases where one of these three scenarios (or an analogous one) has arisen. While there is no time limit on a set aside action, Lord Brandon in Barder regarded it as extremely unlikely that it could be as much as a year, and that in most cases it would be no more than a few months. This condition does not directly transfer to set aside applications founded on allegations of fraudulent non-disclosure, albeit it is well established that the court generally deplores delay, will look critically at the reasons for any delay, and may reflect the delay in bringing a claim in its ultimate award (Wyatt v Vince [2015] UKSC 14). But the point is simple: ambiguity over these three scenarios leaves open a possibility that set aside applications could be brought where non-disclosure is discovered after a party’s death.

We agree with Michael, Greg and Shrishti that the Supreme Court’s judgment does not answer the questions posed in their three scenarios, but we have nonetheless reached tentative conclusions on each. Analysis of the scenarios requires reconsideration of two key cases: Barder itself (unsurprisingly), and Richardson v Richardson [2011] EWCA Civ 79.

First, Barder. As noted above, Lord Brandon framed the analysis narrowly by posing three questions. Lord Brandon answered the second question in the negative. It is worth looking at his logic carefully (at [38] A–B):

‘I can see no good reason for putting such a limited construction on the statutory provisions and rules of court concerned. The purpose of the statutory right of appeal is to enable decisions of a county court which are unjust to be set aside or varied by the Court of Appeal. The fulfilment of that purpose is not made any the less necessary or desirable by the death of one of the parties to the cause in which the decision was made. In a case other than a matrimonial cause I do not think that it would even be suggested that the statutory right of appeal would lapse because of the death of one of the parties to it. I cannot see why a matrimonial cause should be different in this respect.’

That was it. All Lord Brandon determined was that it would be irrational to construe the relevant provisions to conclude that the death of a party precluded a statutory right of appeal.

This is the troubling part. Would it be less irrational to construe the relevant provisions which apply to set aside applications to conclude that the death of a party precluded that statutory right to set aside just because of the death of one of the parties? If we are to accept the appellants’ argument that despite their different statutory footings, appeals and set aside applications have the same intrinsic nature, then one can simply substitute the word ‘appeal’ for ‘set aside’ in Lord Brandon’s paragraph above, so the last two sentences would read:

‘I do not think it would even be suggested that the statutory right of appeal set aside would lapse because of the death of one of the parties to it. I cannot see why a matrimonial cause should be different in this respect.’

That does not mean that only the death of a party can constitute a Barder event via a set aside application. It means that the death of a party would not preclude a set aside application made on any ground. Death does not have to be the ground for set aside.

This potentially far-reaching interpretation finds some support in Richardson. A potted summary of the facts and outcome of Richardson:

• Long marriage of 46 years, parties ran a hotel business as partners.
• The assets at the point of resolving finances on divorce were recorded as £10.9m but the asset schedule omitted allowance for a potential litigation liability arising from a catastrophic accident suffered by a child at the hotel. Both parties omitted to mention it because they believed the claim would be covered by insurance.
• Order made dividing assets almost equally, with a slight departure from equality to reflect qualitative differences between the assets each would get (a la Wells). W to resign from partnership and H to indemnify her against all partnership liabilities.
• W died unexpectedly 6 weeks after the final order.
• The child’s damages claim was progressing through the courts, £3m was being sought. The hotel insurance policy was limited to £2m in any event. 12 weeks after the final order, H became aware that the insurer had voided the insurance policy. H’s agents had been aware of this since before the financial remedy claim was determined but did not tell him.
• H sought leave to appeal out of time on the basis that both W’s death and the uninsured negligence claim amounted to supervening events.
• The court of appeal rejected H’s case that W’s death was a Barder event here because hers was a sharing award, so her death did not invalidate the fundamental basis of the order.
• The Court of Appeal allowed H’s appeal on the issue of the uninsured claim on a narrow basis. It concluded that his discovery of the fact that the insurance cover limit was £2m (against a claim of £3m) was neither a mistake nor a Barder event – it was a known unknown which H declined to investigate.
• However, his discovery of the insurer’s avoidance of the policy was an ‘unknown unknown’, and a matter which he was entitled to rely upon. The Court of Appeal determined it to be a vitiating mistake rather than a Barder event (because it falsified the tacit assumption upon which the parties proceeded).

Two points in Richardson should be noted in the context of the second Barder conundrum. First, redetermination was sought on the ground of mistake. This ground of challenge is nowadays properly made as a set aside application (because no error of the court is alleged). Today, the husband in Richardson would have brought his challenge as a set aside application, and not an application for leave to appeal out of time. This supports the appellants’ argument that there is no intrinsic difference between a contemporary set aside application, and applications for leave to appeal out of time made in the pre-2016 Barder era.

Secondly, and more importantly, Richardson is the only reported case where an appeal out of time has been allowed after the death of a party where that party’s untimely death did not constitute the supervening event. In a sense there is nothing particularly surprising about this: as discussed above, Lord Brandon’s ratio in Barder was simply that a party’s death would not automatically terminate the statutory right of appeal. He did not suggest that the death itself had to be the subject matter of the appeal.

In another sense, it is quite uncomfortable. As already mentioned, in the other Barder death cases (Smith, Reid and Barber), the court had conducted the appeal from the imaginary standpoint of the first instance judge possessed with the knowledge of the applicable party’s imminent death. This approach originated in Butler Sloss LJ’s speech in Smith:

‘In my judgment, the correct approach is to start again from the beginning and consider what order should be made on the facts before the judge. The way in which the registrar actually approached the case, correctly at the time, is now irrelevant. The issue now is as to the right order to be made between the spouses where the wife is known to have only six months or so to live.’

In Reid, Wilson J (as he then was) followed the decision in Smith by distilling his appellate task into this question:

‘what would have been the appropriate order in October 2002 if it had been known that the wife had only 2 further months of life?’

In their written and oral submissions, the respondents in Hasan characterised this process as a narrow exercise of the corrective appellate jurisdiction rather than an exercise of discretion on a blank slate after the death of a party. As touched on earlier in this article, the respondents’ counsel characterised the approach as a ‘fiction’: the conducting of an appellate process from the imaginary standpoint of a first instance judge with clairvoyant knowledge of a party’s death. Lord Leggatt expressed scepticism with the respondents’ argument that the court was obliged to ignore other changes in circumstances that may have happened since, pointing out what the court had done in Richardson, and remarking that to wilfully ignore other relevant changes in circumstances would ‘taking fictions to a pretty extreme length’. The exchange ended with Lord Leggatt putting this question to the respondents:

‘I am suggesting that one approach might be that there is a limited exception to the rule (if it be the rule) that claims cannot continue after death but it doesn’t spill over as it were into every case where somebody dies?’

This suggested approach became paragraph [100] of the court’s judgment.

In Hasan, the court heard extensive written and oral argument on what the court was doing in determining set aside applications after the death of a party. Richardson was discussed at the hearing, and Lord Leggatt pointed to it as support for the notion that the court was not limited to the very narrow ‘fiction’ proposed by the respondents, namely notional time travel to the position of the trial judge with the impossible knowledge of a party’s impending death in mind. Weighing the court’s interventions during the hearing alongside the content of the judgment itself, it seems likely that the court considered that: (1) the court is entitled to consider other changes in circumstance when faced with a post-death set aside application; and (2) Richardson was not wrongly decided. If that is right, and the court’s judgment in Hasan is tacit approval of the Richardson outcome, then we can now revisit Michael, Greg and Shrishti’s three proposed scenarios:

• Scenario 1: ‘A obtains a significant sum based on the sharing principle but fails to disclose substantial sums in their own name which should have been shared. If A dies, and then B finds out about the non-disclosure after A’s death, why should B not be able to apply to set aside?’

Yes, B can. If set aside is interchangeable with appeal in Lord Brandon’s Barder ratio, then there is no reason why B cannot pursue an application to set aside, although the court will presumably look critically at any forensic delay in bringing such an application.

• Scenario 2: ‘A brings a claim relying relying on the sharing principle but B fails to disclose his true wealth. A consent order shares the disclosed wealth equally. B then dies, and A discovers B’s non-disclosure. Can A apply to set aside even though B is dead (after all a claim under the 1975 Act is unlikely to be of any use)?’

Yes, A can, for the same reason as above.

• Scenario 3: ‘A and B agree an order and A later applies to set aside for non-disclosure. The court finds that B had failed to give full and frank disclosure, and gives directions for a limited re-adjudication of A’s claims. B then dies. Can A continue her claim against his estate?’

Yes. As above.

Some may find our conclusions to these three scenarios surprising. We certainly did. If the above analysis is correct, the exception is not so discrete and limited as appeared at first blush. In practice, it would mean that whilst a financial remedy claim cannot be continued after the death of a party, there is very wide scope to set a financial remedy order aside post-death that extends beyond a ‘pure’ Barder scenario.