However, there are exceptional circumstances where a final order may be challenged or revisited.
We explain the main situations in which an order may potentially be set aside, appealed, varied or enforced. The correct route, the evidence required and any applicable time limits will depend on the facts, so specialist advice should be sought before any action is taken.
The starting point: final financial orders are meant to be final
A common question is: can you reopen a divorce financial settlement after a final order has been approved? The starting point is that the family court values certainty and finality in financial remedy proceedings.
Capital orders, such as property adjustment orders and lump sum orders, are generally intended to be final. The court will not usually reopen a settlement simply because one party later regrets agreeing to it, feels they could have negotiated a better outcome, or believes the order now seems unfair with hindsight.
Ordinary changes in life after divorce will not usually be enough. Nor will normal movements in asset values, particularly where those changes were foreseeable or part of ordinary financial risk.
Setting aside a financial order after divorce
Applying to set aside a financial order means asking the court to undo or revisit the order because something serious affected the basis on which it was made. This can arise where a person believes the original settlement was based on incomplete or incorrect information.
The threshold is high. The court may consider fairness, the available evidence, the timing of the application, the importance of finality, and whether reopening matters would prejudice other people.
Fraud or material non-disclosure
Full and frank financial disclosure is central to divorce financial proceedings. An order may potentially be challenged where important financial information was deliberately hidden or materially incomplete.
Specific concerns might involve alleged undisclosed assets, inaccurate values, omitted income, business interests or liabilities, or other financial information that could have made a real difference to the settlement.
However, suspicion alone is unlikely to be enough. Evidence and materiality matter. The issue is not simply whether more information exists, but whether the alleged non-disclosure was significant to the order made.
Mistake
A significant mistake may sometimes justify revisiting an order if it affected the basis of the agreement or decision. For example, there may have been a serious error about the existence or value of an asset. The facts will be important, including how the mistake arose and whether it was central to the financial outcome.
Procedural unfairness
There may also be arguments where the process leading to the order was seriously unfair. This is a fact-sensitive area. The court is likely to look carefully at the procedural history, the information available at the time and the impact of any alleged unfairness.
What is a Barder event?
A Barder event issue refers to an exceptional event occurring shortly after an order, which undermines the fundamental assumptions on which the order was made. These cases are rare, and the court applies a strict approach.
In general terms, the event must usually occur within a short time after the order, be unforeseen or unforeseeable in the relevant sense, and invalidate the basis of the order rather than merely make the outcome less favourable. Any application must generally be made promptly, and the court will also consider whether third parties would be prejudiced.
Variation is different from reopening the whole settlement
It is important to distinguish between final capital orders and ongoing orders. Capital orders, such as property transfers and lump sums, are generally not varied once final, subject to limited exceptions.
Ongoing spousal maintenance may be capable of variation if circumstances change. Depending on the order and circumstances, variation may involve changing the amount, duration or structure of payments.
Variation is not the same as setting aside the entire financial settlement. It is usually focused on the continuing obligation, rather than reopening all financial arrangements.
Appeal, set aside, vary or enforce: understanding the difference
Different routes apply to different problems:
- Set aside: asking the court to revisit an order because of a serious issue such as fraud, material non-disclosure, mistake, procedural unfairness or an exceptional post-order event.
- Appeal: challenging a decision because of an alleged legal or procedural error. Appeals are usually subject to strict time limits.
- Variation: asking the court to change an ongoing order, commonly spousal maintenance.
- Enforcement: asking the court to take steps where an order has not been complied with.
Choosing the wrong route can create delay, cost and risk, so early advice is important.
Why timing and evidence matter
Prompt action is usually important once a concern is identified. Delay may affect whether an application can proceed or how the court views it.
A solicitor may need to review the final financial order, any consent order and statement of information, Form E or other disclosure documents, correspondence and negotiation history, evidence of alleged non-disclosure, mistake or changed circumstances, and information about any third-party interests.
Speaking to a divorce financial settlement solicitor
Final financial orders are designed to be just that, final, but there are limited and fact-sensitive circumstances in which an order may be challenged, set aside, varied or enforced. The appropriate route will depend on whether the concern involves non-disclosure, fraud, mistake, procedural unfairness, an exceptional event, maintenance variation or non-compliance.
For further information and trusted legal advice regarding divorce, get in touch with us at Carlsons Solicitors.
