The benefits of finality in family law decisions and financial settlements following divorce are clear. We have previously discussed clean break settlements. Perhaps more than in any other branch of law the idea of certainty is important. It helps estranged spouses and their children move on with their lives.
So what happens if one spouse is dissatisfied with the financial order and wants to ask the court to change it?
Can A Financial Order Be Changed?
Yes. Although it’s not easy. The circumstances in which a judge will modify an order are limited. But if you are dissatisfied with your financial settlement there are some ways you can get the courts to reconsider its terms. You can:
- Appeal against the order if you think the judge has made a mistake in applying the law to the facts of your case. There is a strict time limit for bringing such an appeal.
- Argue that some event has occurred since the order that is significant enough to invalidate the terms of the original order.
- Ask the court to set the order aside for one of a number of other reasons, including fraud, undue influence or lack of capacity.
We will look at each of these in turn.
How Do I Appeal Against A Financial Order?
The courts believe it is in the public interest to achieve finality in divorce proceedings. This includes financial matters. For this reason the ability to appeal 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.
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.
What Type Of Event Will The Court Consider Significant Enough To Reopen My Divorce Settlement?
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
How Do I Set Aside A Financial Order On Other Grounds Such As Fraud Or Undue Influence?
Again, successful applications to set aside a financial order are not common. You will need to present clear evidence. That’s because the courts are traditionally reluctant to revisit financial orders because of a fear of undermining the principle of finality in family cases.
That said, it is possible to argue that an order should be set aside on one of a number of grounds. We explained in a previous post what happens when one spouse hides assets (non-disclosure). A great deal will depend on whether there is persuasive new evidence, and whether the non-disclosure was innocent or fraudulent. Other grounds for setting aside financial orders include:
- Duress or undue influence
- Lack of capacity
Should I Attempt To Change My Financial Order?
It depends on the facts of your case. Generally speaking the courts discourage applications of this type. The procedure is complex, and the rules are narrowly drawn. Any delay 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, 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.