It can sometimes be that one party in divorce proceedings, upon reflection, feels dissatisfied with the final financial order. Even when the settlement has been reached by consent. But reopening a case is never something to embark on lightly. That’s because the courts in England and Wales put a premium on the principle of finality in divorce proceedings. The view is that it’s in the couple’s interest to be able to get on with their lives without the fear of being brought back to court on financial matters. From a more general public policy perspective as well, courts do not encourage any weakening of financial orders.
Having said that, if the circumstances are right it may be possible to successfully challenge the terms of your financial settlement. But remember, ways to do so are extremely limited in scope and you should seek specialist advice before taking any action.
Have Intervening Events Undermined The Original Order?
Sometimes an event of such significance occurs after the financial order is made that the whole basis on which it was reached is changed completely. We have to go back to 1987 and the case of Barder v Barder to see quite how significant such an event needs to be.
In that case, the court made an order transferring a property to Mrs. Barder based on her and her children’s need for a home for an indefinite period. Shortly afterwards Mrs. Barder tragically killed her children and committed suicide. Her former husband successfully overturned the transfer of the home given the changed circumstances.
In Barder the court set out four guidelines for courts to apply when deciding whether or not a financial settlement can be altered. These were:
- Something occurs after the order that invalidates the assumptions on which it was made
- The intervening event should be within a short period of time from the original order
- The party wishing to change the order must apply to court as soon as possible after the event occurs
- Any change to the order should not adversely affect a third party who has acquired property included in the order in good faith
So the tests are big obstacles to overcome when seeking to change a financial order based on some intervening event. Cases decided since Barder have demonstrated this with judges confirming that it will be a rare case that comes within the Barder principles. For example following the banking crisis on 2007 many people sought to reopen their financial settlements because the value of share portfolios and other property had plummeted. They argued that the downturn in their fortunes meant they could no longer afford the financial settlement determined by the court. But judges repeatedly decided that fluctuations in shares or house prices are not a sufficient reason to reopen a settlement. In one case City tycoon Bryan Myerson failed to change a £9 million divorce settlement with his ex-wife on the grounds that market fluctuations since the settlement had wiped out most of his wealth.
What If My Ex Hid Some Assets?
During the divorce process you are required to fully disclose all your assets. If one party fails to do so – innocently or fraudulently – the basis of any financial settlement might be fundamentally flawed. In the separate cases of Sharland and Gohil two wives successfully applied to have their financial settlements reopened because their husbands misrepresented the extent of their wealth during financial negotiations. The cases show the dangers for a party to divorce who is not completely transparent in relation to financial matters.
Consider An Appeal
Financial orders can be appealed like any other court order. Because of the desire for finality mentioned above however you must first convince the court that there is a real chance your appeal will be successful or that you have another compelling reason to bring an appeal.
Whatever route you think is best to challenge a financial order the legal hurdles involved mean it’s crucial to get specialist advice at an early stage. If you would like to discuss your circumstances with us please call us on +44 (0) 20 7430 8470.