Once a court has made an order setting out the division of matrimonial assets, liabilities, and maintenance obligations, known as a Financial Remedies Order, following a divorce, such orders are generally final and legally binding. This is because it is in the interests of justice and public policy to uphold finality and certainty in financial settlements.
There are however circumstances in which a former spouse may seek to set aside (i.e., cancel or vary) such an order. While it is possible to set aside a financial remedies order, as stated the court takes a very cautious approach, prioritising fairness and finality. The grounds for setting aside such orders are narrow and those seeking to challenge an order should seek legal advice promptly, as time limits may apply, particularly in cases of fraud or non-disclosure.
Grounds for Setting Aside a Financial Remedies Order
The specific grounds upon which an application to set aside may be made are as follow:
Non-disclosure of Assets
If one party failed to disclose relevant financial information during the proceedings, leading to an unfair settlement, the order may be set aside. Non-disclosure must be significant and material to the agreement, such as hiding assets or misstating liabilities.
Fraud or Misrepresentation
If one party has deliberately concealed or misrepresented financial information during the negotiations that led to the order, this could be grounds for setting the order aside. Full disclosure of assets, liabilities, income, and other financial matters is required for the order to be valid. If a party withholds material information, the other party may apply to set aside the order.
Undue Influence or Duress
If a party was forced, coerced, or unduly influenced into agreeing to the terms of the order, it may be set aside. This could include situations where one party was pressured or manipulated into accepting terms they did not freely agree to.
An Unforeseen Event
A significant subsequent event unforeseeable at the time the order was made which invalidates the basis of the order. This must happen shortly after the order, and fundamentally alter the basis upon which the original order was made, rendering it unfair or unjust to uphold the original settlement.
Mistake or Misunderstanding
In certain circumstances, a mistake made by one or both parties in relation to the terms of the financial settlement may form a basis for setting aside the order. This could include errors in the understanding of the financial position such as to render the order unfair.
Lack of capacity
A person lacks capacity if their mind is impaired or disturbed in some way which means that they are unable to make a decision at that time. This might be permanently or in the short term.
Process for Setting Aside a Financial Order
To set aside a financial order, an application must be made to the Family Court.
- Grounds for Application – before beginning the process, you must establish a valid legal ground for setting aside the financial order, based on the narrow and specific grounds above. The court will not entertain applications simply because a party regrets the agreement or wishes to renegotiate the terms, in the event that the order was agreed.
- Application to the Court – to initiate the process, the party seeking to set aside the order must lodge an application to set aside with the court.
- Court Hearing – once the application is lodged, the court will schedule a hearing. Both parties will be required to attend the hearing where they will present their arguments. The applicant will need to demonstrate to the court that there is a valid reason for the order to be set aside.
- Evidence – it is crucial to provide evidence to support your application. This could include financial documents, communications, witness statements, or other relevant information. For example, if alleging fraud or non-disclosure, you will need to show that the other party concealed significant financial assets or misrepresented their financial position.
- Outcome – if the court is satisfied that there is a valid reason to set aside the order, it may either:
- Set aside the order entirely and potentially order a new financial settlement.
- Only set aside part of the order.
In either case the new order can be made at an entirely new hearing or if there is enough information to do so, the court may make the new order at the same hearing once it has decided that the original order is to be set aside.
If the court rejects the application, the original order will remain in place.
- Appeal – If the application is refused, the party who applied to set aside the order may have the option to appeal the decision. This must be done within a strict time frame, typically 21 days from the date of the decision.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
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