If you speak to anyone going through a divorce, the thing they are probably most looking forward to is when the process ends, and they can move on with their life. So you may wonder why someone would want to alter a divorce financial order and reopen old wounds. We take a closer look at changing financial settlements and the circumstances in which this could happen.
Although, in practice, it is possible to alter, or vary, a divorce financial order, it is not easy to do so. A judge will only change it in a limited set of circumstances. This is because financial settlements which could easily be changed would provide both parties with very little financial security and closure following divorce.
Can I appeal a divorce financial order?
You or your ex could decide to appeal the financial order if you think the judge has made an error in applying the law to your case. However, this is time limited, so you should seek legal advice as soon as possible. In addition, the person wishing to make the appeal firstly needs to obtain permission from the court to do so. Permission to appeal will only be given if it has a real prospect of success (this is up to the court to determine) or there is a compelling reason for the appeal to go ahead.
If you received permission to appeal, the judge could decide to set aside the order, leave it as is, or vary its terms. Equally, the judge could decide that a specific issue needs to go back to the lower court to be looked at again.
Can I vary a financial order if my circumstances have changed since the original settlement?
Life does not stand still, and events can happen which change our circumstances and mean that the financial order that made perfect sense when the divorce took place may not now be appropriate. When circumstances change, the court has the power to vary financial orders.
Most commonly, the courts see applications to vary maintenance amount or duration. However, the court can also vary other elements of a financial order, should circumstance dictate, such as an order for the sale of a property or an order for lump sums by instalments. When varying a financial order, the judge will always have the needs of each spouse at the forefront of their mind.
Can I have a divorce financial order set aside?
Sometimes, it may be possible to set aside a financial order and there are two broad categories in which the court’s power falls. The first recognises that there was a misunderstanding at the time the order was made. Within this category, the court may only set aside the order if it can be shown that, at the time the original order was made, there was either:
- Fraud, fraudulent non-disclosure, or misrepresentation of material facts; or
- Inadvertent or negligent non-disclosure of material facts; or
- Mistake
The second category concerns a change of circumstances after the order has been made. The court may set aside an order where a subsequent event has invalidated its underlying basis. These events are known as “Barder” events.
What type of circumstances invalidates a divorce financial order?
In some limited circumstances, you or your ex could argue that the court should reopen the financial order because of an event that happened after the original order was made. A Barder event originates from a case decided in 1987, and is defined as “an event that invalidates the main or fundamental assumption upon which a financial remedy order was made, and which can ultimately challenge that order”.
There are four conditions that must be satisfied:
- The new event(s) have happened since the order was made which overturns the main assumptions on which the order was given, and if permission to appeal was allowed, it would be likely to succeed.
- The new event(s) have occurred in a relatively short period of time following the order being made. This should not exceed a few months.
- The application to appeal out of time must be made promptly within the context of the case.
- The grant of appeal out of time does not put third parties at a disadvantage where they have acquired in good faith, interests in property as a result of the original order.
What type of event reopens a divorce financial order?
In order to use a Barder event effectively, the new event must be unforeseen and unforeseeable. Such events may include (but are not limited to):
- Significant change in value of assets – a change in calculation of an asset would not be deemed sufficient
- Change in employment status – redundancy would not be considered sufficient to appeal a divorce financial order
- Death
- Remarriage or cohabitation where it was concealed during the financial process – straightforward remarried is not considered sufficient
- Change in housing needs – such as where a child’s primary carer changes from the mother to the father meaning the mother no longer has housing needs as high as she would have had.
- Inheritance – for example, if the inheritance means that one party no longer needs the interest in the former matrimonial home to discharge debt and the mortgage can be redeemed, then the assumption upon which the order was made no longer applies.
In a 2015 case, ownership of the family home was transferred to the wife, Mrs Critchell, who also took over responsibility for the mortgage. Mr Critchell received a charge over the house for 45% of its net value which he would receive when the first of several listed events occurred.
A month after making the order, Mr Critchell’s father died, and he inherited £180k which meant he could pay off the mortgage on his new home and no longer had to repay an £85k loan to his father. Mrs Critchell appealed the original order on the basis that the death of Mr Critchell’s father had moved the goalposts and as a result his circumstances were now quite different. The court agreed with Mrs Critchell and removed Mr Critchell’s charge over the former family home and although he appealed to the Court of Appeal; he lost his 45% charge over the house.
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