Guide to setting aside financial orders
Most financial orders are made as a result of the parties reaching an agreement. In the absence of an agreement the court will be asked to determine the matter. In both instances a court order will be made and can be enforced by either party in the event of the other’s non-compliance. In the vast majority of cases this brings the matter to a conclusion. Either party can ask for permission to appeal an order made by a judge if there has been an error in fact or law. In other cases it is possible to apply to set aside the order, the effect of which is that the matter is reopened and the matter can be re-determined. Such instances are uncommon as the courts are only prepared to consider such applications in very limited circumstances. On the whole, a party can only set aside an order where there has been fraud, mistake, material non-disclosure or events occurring which invalidate the basis on which the order was made. A 2012 case also added undue influence to a possible reason to set aside an order.
In essence, fraud is a deception intended to result in a financial and personal gain. It most commonly occurs in financial proceedings where one party has told an untruth or has failed to disclose something which should have been disclosed (discussed further below).
In practice, mistake is rarely used as a ground to set aside financial orders. The mistake must be a mutual mistake made by both parties such that had the court known the true facts then it would have made a different order. An example would be where a business had been incorrectly valued. If, however, the complaining party is in some way to blame, for example they failed to undertake proper investigations, the court will not set aside the order.
All parties in financial proceedings have an on-going duty to provide full and frank financial disclosure. Occasionally, it will come to light after an order has been made that one party had significantly more assets than were previously disclosed. By way of an example, a husband might plead poverty during the proceedings but upon their conclusion might purchase new cars and property using undisclosed funds. The non-disclosure must be so significant that it would have materially changed the outcome of the proceedings.
In exceptional circumstances a party can apply to set aside an order on the basis of a subsequent event occurring that fundamentally affects the outcome of the proceedings. Such events are called Barder events following the case of Barder v Barder. The event must invalidate the basis or fundamental assumption upon which the order was made. It must also occur very shortly after the conclusion of the matter and in most cases must be no more than a few months. The circumstances in Barder v Barder were that shortly after the order was made the wife killed the parties’ two children and then committed suicide. The House of Lords held that in the circumstances the order should be set aside.
If you are interested in discussing setting aside financial orders please see How Vardags can help with setting aside financial orders.