Contesting a Financial Settlement After Divorce: When and How Court Orders Can Be Challenged
Financial settlements are intended to bring finality after a divorce. Once the court approves a financial order, both parties are expected to comply with the terms. The order may cover property division, maintenance, pensions, and lump sum payments. Although court orders are designed to be final, there are some situations where they’re revisited. For people who believe an order was made on an incorrect basis or circumstances have significantly changed, the options available depend on the type of order, the timing of the challenge, and the reasons behind it.
When a financial order can be challenged
A financial settlement approved by the court is usually contained within a consent order or a financial remedy order following a hearing. In most cases, these orders are considered final and binding.
However, a challenge may be possible where there has been fraud, non-disclosure, mistake, or a significant event that invalidates the basis on which the order was made. A common example is where one party deliberately failed to disclose assets during the financial proceedings. Full and frank disclosure is a fundamental requirement in financial remedy cases, and a breach can justify the order being set aside.
A less common example is what family law calls a “Barder event”. This originates from a case called Barder v Barder. After a financial order transferred the family home to the wife, she and her children died. The House of Lords decided the order should be revisited because the principle reason for the decision – providing housing for the children – no longer existed.
The timing of any event is important. Courts will consider whether it undermines the fairness of the original decision.
A mistake can also provide grounds for challenge. This might occur if both parties relied on incorrect financial information when agreeing the settlement.
Asking the court to reconsider
The appropriate route of contesting or altering a financial settlement depends on the nature of the issue.
One option is an appeal. Appeals must normally be lodged within a short timeframe, usually within 21 days of the order being made. An appeal challenges the judge’s decision on the basis that there was a legal or procedural error.
Another route is an application to set aside the order. This is often used where there has been non-disclosure, fraud, or mistake. The applicant must demonstrate that the original decision was fundamentally flawed because relevant information was hidden or incorrect. Divorce lawyers, such as those at Willans (willans.co.uk), can help assess whether there are valid grounds for a set aside application and advise on the strength of the evidence required.
For some types of financial orders, variation is possible. Spousal maintenance orders are the most common example. If a person’s financial situation changes significantly, they may ask the court to increase, reduce, or terminate the payments.
Evidence and legal thresholds
Courts don’t reopen cases lightly, so challenging a financial order requires strong evidence.
In cases involving non-disclosure, the applicant must show that relevant information was deliberately withheld and that the hidden material would likely have affected the outcome. Bank statements, company records, and financial documents may be important.
For a challenge based on a mistake, evidence must demonstrate that the error materially influenced the agreement. Minor inaccuracies are unlikely to justify reopening the case.
In the case of a major event, the applicant must show that it occurred shortly after the order and that it invalidates the assumptions on which the settlement was based.
Anyone considering a challenge should act promptly. Delays can weaken a case and may lead the court to refuse the application. Legal advice at an early stage can help determine whether the situation meets the strict legal tests.
