A financial settlement on divorce is generally intended to be final. You cannot normally reopen an agreement or court order simply because you regret the deal, your circumstances have changed or the outcome looks less favourable with hindsight.
There are, however, limited circumstances in which a financial order can be challenged, set aside or varied. The options depend on what has happened, the type of order and how long ago it was made.
An important first step is therefore to establish whether you are actually seeking to reopen the original settlement, appeal the decision or vary an order which remains capable of variation.
Agreement or court order?
The legal position depends partly on what you already have.
If you and your former spouse have reached an agreement but it has not yet been approved by the court, there may be greater scope to reconsider it. An agreement is relevant, but the court still has to decide whether the resulting financial order is appropriate.
Once an agreement has been incorporated into a consent order approved by the court, it becomes a court order. It cannot simply be withdrawn because one person changes their mind.
The same principle applies where a judge has decided the finances following contested proceedings. There are routes for challenging a decision, but the courts place considerable importance on finality.
On what grounds can a divorce financial order be reopened?
The grounds are relatively limited. Depending on the circumstances, they can include:
Fraud or material non-disclosure – for example, significant assets or financial interests being concealed when the settlement was reached. We have a separate guide to material non-disclosure in divorce covering this in detail.
A significant new event – an exceptional event occurring shortly after the order which fundamentally undermines the assumptions on which it was based.
Mistake – where an important mistake affected the basis upon which the order was made.
Serious problems with how an agreement was obtained – potentially including undue influence, duress or misrepresentation affecting the validity of the agreement.
An error in the court's decision – which may potentially be dealt with through an appeal rather than an application to set aside the order.
Which route applies matters. Challenging the original order is legally different from asking the court to change an order because circumstances have subsequently changed.
What is a Barder event?
A Barder event takes its name from an important family law case and describes an exceptional event occurring after an order which invalidates the fundamental assumptions on which it was made.
The threshold is high.
The event generally needs to happen relatively soon after the order and fundamentally change the basis of the settlement. The application must also be made promptly.
An ordinary change in financial circumstances is unlikely to qualify.
For example, property prices falling, an investment performing badly or someone's business subsequently becoming more or less successful would not ordinarily allow a settlement to be reopened.
Can I reopen a settlement because my circumstances have changed?
Usually not if you are seeking to revisit a final division of capital.
One of the purposes of a financial settlement is to enable both people to move on financially. If every subsequent change in income, property value or personal circumstances allowed the original settlement to be reconsidered, there would be very little certainty.
However, some types of financial order remain capable of variation.
The most obvious example is spousal maintenance.
If one former spouse is paying ongoing maintenance, a significant change in income, needs or other relevant circumstances may justify an application to increase, reduce or terminate the payments.
That is a variation of an ongoing financial obligation rather than reopening the original capital settlement.
Can a clean break order be reopened?
A clean break is specifically designed to bring future financial claims between former spouses to an end.
It therefore provides substantial finality. A former spouse cannot normally return years later seeking more money simply because their circumstances have deteriorated or the other person's have improved.
However, a clean break does not necessarily protect an order obtained through fraud or other exceptional circumstances which provide a legal basis for setting it aside.
The important distinction is between making a new financial claim and challenging the validity of the original order.
What if an asset becomes much more valuable after divorce?
That will not normally be sufficient.
Assets fluctuate in value. Businesses grow or fail, property prices change and investments rise and fall. Those risks do not generally allow either spouse to reopen the settlement retrospectively.
The position can be different if the issue is not subsequent growth but whether the asset was properly disclosed or valued when the settlement was reached.
For example, discovering evidence that a business was worth substantially more at the time of the divorce than was represented raises a different issue from the business simply becoming successful several years later.
What if my ex becomes wealthy after the divorce?
Again, subsequent wealth does not normally justify reopening a final capital settlement.
That might include receiving an inheritance, building a successful business, receiving a substantial bonus or otherwise becoming considerably wealthier.
There may be different considerations where an ongoing maintenance order remains in place, because maintenance can potentially be varied according to subsequent circumstances.
Appeal, set aside or vary?
These terms are sometimes used interchangeably but involve different legal issues.
Appeal – challenges the court's decision, generally on the basis that the judge made an error. Strict time limits apply.
Set aside – asks the court to undo an existing order because there is a recognised reason why it should no longer stand, such as fraud or certain exceptional subsequent events.
Variation – asks the court to change an order which remains capable of being altered, most commonly an ongoing maintenance order.
Identifying the correct route at an early stage is important because the legal test, evidence, procedure and time limits differ.
How quickly do I need to act?
Potential challenges should be investigated promptly.
Some routes have strict procedural deadlines. Even where there is no simple fixed time limit, delay can damage an application.
This is particularly important where something significant has happened shortly after the order or new evidence has emerged which calls the original settlement into question.
What happens if an order is reopened?
Successfully challenging an order does not necessarily mean that the court simply substitutes the outcome you now want.
Depending on the circumstances, the court may need to reconsider part or all of the financial arrangements. That could require further disclosure, updated valuations, negotiations and potentially another court hearing.
There can also be significant costs consequences.
Before starting proceedings, it is therefore important to consider both whether there are proper legal grounds for a challenge and whether the likely financial benefit justifies the cost and risk involved.
How we can help
If you are considering challenging an existing divorce financial order, we can assess:
exactly what the existing agreement or order provides;
whether it is final or contains provisions which can still be varied;
what has happened since the order was made;
whether there are recognised grounds for challenging it;
whether an appeal, set-aside application or variation is the appropriate route;
the evidence likely to be required; and
the likely costs, risks and practical benefit of taking action.
We also advise clients facing attempts by a former spouse to reopen or vary an existing settlement.
Obtaining advice early can be particularly important. The fact that something has changed since divorce does not necessarily justify further proceedings, while a potentially valid challenge can be weakened by unnecessary delay.
