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I’m unhappy with the financial order made in my divorce – what can I do?

01/10/15 - 8:52 am

If your financial case is decided by a Judge and you are unhappy with the decision, because the discretion of the Judge is so wide, the way forward can be a tricky and potentially expensive one.

There are few appeals of financial orders. To succeed on appeal, you have to convince a second Judge that the first Judge was “plainly wrong”. There are strict time limits to appeals and many rules to be complied with. A Judge is entitled to make a wide range of orders in a financial case arising from divorce. To prove to a second Judge that the original Judge was ‘plainly wrong’ can often be very difficult.

In most cases lawyers will often advise against appeals.

Disregarding appeals, there are two other ways forward but these apply to very limited circumstances:

  1. If an event (usually taking place within a year of the original Order) has changed the basis of the Judge’s decision. These are known as “Barder” cases or Barder events.
  2. If you were misled e.g. you have realised there were undisclosed assets at the time of the hearing; you were under duress, or you didn’t have capacity at the time the order was made.

“Undisclosed assets” does not mean a bank account holding 50p. The undisclosed assets or income must be worth taking the case back to Court over i.e. had the Judge known about the other assets or income, that case would have had a different outcome.

“Barder events” are also few and far between, however, there has been a recent run of cases  through the Court in which Barder events are shown to have taken place. Barder was a case decided in 1988 by the House of Lords which involved a tragic set of circumstances. A husband and wife agreed that the family home should be transferred to the wife who was to care for the two children of the marriage. Five weeks after the agreement was approved by the Court as an Order, the wife killed the children and committed suicide. The husband applied to Court for the  Judge to look at the case again. The Judge agreed setting out four conditions that must be met:

  1. The new events that occur must invalidate the whole basis upon which the order was made.
  2. The new event must occur relatively quickly.
  3. That once the new events have occurred, an appeal out of time (for the Judge to look at the case again) must be made without delay.
  4. That looking at the case again must not prejudice any third parties who have acquired a share of the property.

Critchell v Critchell, decided in 2015, involved a large inheritance received by the husband after a Court Order was made. The order, made by agreement, noted that the family home was to be transferred to the wife on the basis that the husband was to retain a financial interest that he could obtain in the future e.g. if the wife re-married. Within a month of the Order being made, the husband inherited a large sum of money from his late father. As his father’s death was sudden and completely unforeseen, the Judge agreed that this inheritance meant that he should review the original Order.

WA v Executors of the Estate of HA and Others was also decided this year. This was a big money case where the wife was described as “fabulously wealthy”. She was to pay the husband £17 million in two instalments. The first was paid but within 22 days of the Court Order being made, the husband committed suicide . The Judge agreed that the husband’s suicide changed the whole basis upon which the original Court Order was made and that the case should therefore be looked at again.

It is therefore important that you obtain legal advice before you sign any paperwork relating to a financial agreement on divorce, or you start court proceedings on a contested basis as your options for taking your case back to Court will be limited. Asking the Judge to reconsider a set of circumstances involves a complex set of legal procedures and complicated law. It is vitally important that you obtain legal advice
before making such an application to the Court. Contact Emsleys’ Solicitor and Head of Family Law, Gabbie Clasper, on 0113 201 4900 for a free, no obligation consultation.

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