Financial remedy orders following divorce are usually final. Changing them isn’t easy, and there are sound public policy reasons for this. We know that courts in England and Wales encourage clean break settlements and the benefits of finality in family law decisions and financial settlements following divorce are clear.
So, the rules and legal framework around financial orders are aimed at discouraging spouses from reopening discussions about finances once an order (whether reached by consent or not) has been finalised. More than in many other branches of law this idea of certainty is important because it helps estranged spouses and their children move on with their lives.
The result of this approach to financial settlements is that, while there are legal options available to a spouse who is dissatisfied with an order, the reality is that most financial orders can only be changed in extremely limited circumstances.
These rare occasions include:
- Cases where an exceptional event has occurred that radically alters the financial dynamics of the divorced couple
- Where a spouse fraudulently misrepresented their financial position during divorce proceedings
- Where the order includes ongoing payments such as spousal maintenance and these are capable of variation independently of the main financial settlement
Below we examine the challenges faced by anyone wishing to change an existing financial remedy order.
How Do I Appeal Against A Financial Order?
As we have highlighted the courts believe it is in the public interest to achieve finality in divorce proceedings. For this reason the ability to appeal a financial remedy order is limited. First you must ask for the court’s permission, and this will only be granted if either:
- The court considers that the appeal would have a real prospect of success or
- There is some other compelling reason why the appeal should be heard
Appeals must usually be lodged within 21 days of the original order, and they will only succeed where you can demonstrate that the judge in the lower court made a legal or procedural error. You can’t, for example mount an appeal simply because you believe the order is unfair.
At the appeal hearing the court can affirm, set aside or vary any order or judgment made or given by the lower court. It can also order a new hearing or send a particular matter back to the lower court for reconsideration. Before appealing you should always seek legal advice. The odds of success are low, and the risk of incurring significant legal expenses is high.
Is My Change In Circumstances Enough To Reopen My Divorce Settlement?
If something has happened that fundamentally changes the finances of you or your ex you may be able to seek a review of the financial order.
The factors the court looks at were set out in the case of Barder back in 1987. In that case the wife committed suicide shortly after the consent order. This gives an indication of the type of life-changing event a court needs to be able to rely in to reopen a financial order. Essentially, before allowing such an appeal, the court must be satisfied that:
- The new event invalidates the basis on which the original order was made to such an extent that any appeal against the order would be certain – or very likely – to succeed
- The intervening event occurred shortly after the original order
- The request for an appeal was made promptly
- The appeal will not negatively affect anyone who has acquired, in good faith and for valuable consideration, property which is the subject matter of the financial order
As with appeals, the bar to revisiting a financial remedy order in this way is extremely high and you should obtain specialist advice before pursuing a review of your financial order in this way. Barder-type applications made in the aftermath of the Covid pandemic are a useful illustration of this. In HW and WW (2021) for example, a husband asked for a financial order made in 2020 to be changed because the value of the family business had fallen dramatically (from £3.5m to £1.265m) due to the pandemic.
The court found that the Covid 19 pandemic and its impact upon the husband’s key asset was a potential Barder event. This meant that the order could potentially be set aside. However the court went on to find that the risk of the event was reasonably foreseeable to the husband. For this reason, whilst acknowledging the difficulty of the husband’s position, the court declined to reopen discussions around the terms of the financial order.
What If There Was Fraud Or Undue Influence?
Although financial orders are rarely overturned, applications to set them aside can be made on several grounds, including fraud and undue influence.
Where one spouse hides assets or lied about their finances during the original case, the other can apply to have the order set aside. The landmark case of Sharland and Gohil in 2015 established that, when one spouse fraudulently hides assets, the agreement of the other spouse to the order cannot be said to have been properly given. That spouse should as a result be entitled to reopen the settlement. But reopening a settlement in this way requires strong evidence such as proof of undisclosed bank accounts, property or commercial interests.
Similarly it’s possible to set aside an order if it can be shown that the spouse was subjected to undue influence during negotiations or the court proceedings that led to the original order. This occurred in PN v SA (2025) where the judge found that the wife’s free will when entering the consent agreement had been overborne by a sustained pattern of undue pressure by her husband.
Bear in mind that, even if non-disclosure or undue influence is established, unless the behaviour led to a substantially different financial outcome, the original order is unlikely to be altered in any significant way.
Should I Attempt To Change My Financial Order?
It depends on the facts of your case. As we have seen, the courts discourage applications of this type. The procedure is complex, and the rules are narrowly drawn. Also, any delay in applying to review an order will be looked on unfavorably. If you do not act quickly after new facts are unearthed it could destroy any case you might have. Finally, bear in mind that whatever your grounds for seeking a change to the financial order you must usually be seeking a significantly different order from the original for the court to entertain your request.
In our experience the parties can sometimes reach a private agreement to change the way their assets are divided even after a final financial remedy order. This happens when for example, a spouse loses a job or alternatively one party receives an unexpected financial windfall and agrees to increase the settlement amount voluntarily. These are pragmatic arrangements that don’t have the same legal force as the court order and are usually worked out with the help of solicitors for both sides. But they often provide a practical, cost-effective way to manage a change in financial circumstances. In the long term however it’s still advisable to get such informal agreements approved by the court.