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Divorce – Are Financial Orders Final?

PLEASE NOTE: THIS ARTICLE IS OVER 1 MONTH OLD

In short, the answer is no.

A court Order is regarded as final and binding. To have achieved the Order all relevant financial information will have been taken into account.  However, Orders can be appealed, set aside or you may seek to vary an Order, depending on the circumstances.

To appeal an Order you must seek permission to appeal, this permission may be given if you can demonstrate a real prospect of success. The appeal must be made within good time. If your appeal is allowed, the Order could be set aside, affirmed or varied.

Can I go back to court if my circumstances change after a Court Order is made?

Court orders are not a one size fits all and even though they are tailored, lives and financial situations change so a Court Order that may have been appropriate at the time of making, may not seem appropriate in the future.

If you have Divorced or have commenced Divorce Proceedings, then you may have a Court Order in respect of your finances. Court Orders are legally binding.

The significance of a legally binding Order in respect of your finances is to enable you to move forward, draw a line in the sand and prevent your ex-spouse being able to reappear and try to make a claim on your assets in the future.

After the breakdown of your marriage, if you have a Financial Order then this will have either been reached via agreement and documented by way of a Consent Order or via Court Proceedings where a Judge will have decided the outcome and made an Order.

What happens if I have received a Final Court Order and my financial circumstances change?

If you have a Court Order, you may feel that is definite and that is the end of the matter, however it is possible for you to make an application to vary an Order. These applications are not available if you simply wish to change the Order as upon reflection it doesn’t suit you or you think you could have done better.

Financial Orders can vary significantly and are specifically tailored to you. Anything can happen in life, and you may have an Order where you are committed to paying maintenance to your spouse and school fees for a specific term. Should you lose your income or be unable to work due to severe illness then you may need to look to return to Court to vary the Order.

An Order can only be challenged on the grounds it was made not just because you think it could have been better.

It may be challenged if there was fraud, misrepresentation, undue influence or one party did not disclose certain facts and information. If there has been a material non-disclosure at the time of the making of the Order, then there is a greater chance that your Order could be set aside, reconsidered or varied.

When can I apply to vary?

There must have been a significant change in circumstances which could not have been foreseen at the time of making the order.

A Barder event may invalidate an Order. A Barder event can be an unforeseen event which invalidated the basis on which the Order was originally made. The term “Barder event” comes from the case of Barder v Barder 1987 where there was an Order transferring the family home from the husband to the wife due to the wife being the primary carer of their children. Shortly after the Order being made, the wife killed herself and their children. The house was then left to the wife’s mother. The husband therefore successfully sought to challenge the Order successfully.

What Types of Orders can be varied?

As stated above each Financial Order made is unique to you and dependent on disclosure and your financial circumstances. There are Interim Orders, which are made prior to a final hearing and there are Final Orders. There are a range of Orders that can be made and below are a list of some Orders which may be subject to being varied:

  • Maintenance Pending Suit (interim order) – up until the Final Order
  • Periodical Payments
  • Secured Periodical Payments
  • Orders for Sale
  • Orders for Lump Sum payable by Instalments
  • School Fees Orders

It is worth noting that remarriage will automatically bring an end to spousal maintenance for the receiving party. Cohabitation does not give this automatic right however there may be the opportunity to consider possible applications to vary Orders upon remarriage or cohabitation dependent on the full circumstances, which most definitely would need specialised legal advice and consideration.

How do I Vary a Court Order?

An Order can be varied under section 31 of the Matrimonial Causes Act 1973. If your financial circumstances have significantly changed and you do not feel the Order is achievable or fair then the Court will consider the following conditions:

  • What was the original Order and the circumstances for creating that Order
  • If the change in circumstances invalidates the basis on which the original Order was made
  • What has changed and how close to the original Order has it changed, it should usually be within 12 months
  • Would the new Order prejudice the rights of any third party for example a third party who has acquired property in good faith
  • What Order would the Court make in light of the new circumstances

The Court has a lot of discretion with these applications and they will need to consider all circumstances of the case.

To make the application you can use form D650 which can be found online.

How can Andrew Isaacs Law help me?

If you are asking questions as to whether your Order can be varied or could be subject to a Variation Application then you will no doubt be aware this is a complex area of family law.

Our team of experienced Family Lawyers are here to help. We can explain your Order to you and discuss any potential application to vary or challenge your Order and consider the merits of any such application.

We offer fixed fee appointments where you are able to take advice with no obligation to instruct. Please do not hesitate to call us today on 01302 349480.

Roxanne Woolliams – Solicitor                                                          24.08.2022

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