Taking an analogy from the now-in-full-swing football season (a sport that invokes mixed reactions in the office) we thought we would have a look at the family law equivalent of extra time: when the referee’s final whistle does not in fact mean the game is over, but rather means a period of extended play, if not an actual penalty shoot-out.
The final whistle in financial proceedings is the court order. When parties reach an agreement through negotiations (set out in a consent order), or litigate and obtain a judge-imposed order, everyone expects the order to be the end of the process. All that normally follows is to put its terms into effect. However, just occasionally it is possible to unravel that order, and return to court for a period of extra time, or rather another round of litigation. (At this point, we will kick the footballing references into the long grass!)
Just to be clear: reopening or unravelling an order is not to be confused with appealing an order. This is about applying to get an order set aside for some reason, which is a different legal procedure altogether. Appeals can be made in limited circumstances where you consider a judge to have gone wrong in applying the law or on the facts of your case.
Courts don’t usually want to overturn orders as the finality of the litigation is in everyone’s best interest. There are, however, certain limited circumstances in which a court order can be set aside. Orders, whether made by consent or imposed by the court, are invariably based on several assumptions. These include the assumption that each person has provided full and accurate financial disclosure and that truthful statements and evidence are provided by both parties about their present situations and future plans.
Where either person can be shown to have lied about their financial disclosure or to have lied on oath, to the extent that a different order would have been agreed or imposed had they been truthful, the basis for the order may be undermined and the order could potentially be reopened. Legal advice about the prospects of successfully reopening the case following non-disclosure is essential, because it’s a complex area and the potential benefits in your particular case may not outweigh the risks.
If there has been a significant, unforeseen, circumstance-changing event which comprehensively undermines the order, a court may also consider looking at the whole thing again. This is known as a “Barder” application after a case in which the wife tragically killed herself and the two children five weeks after the final financial order in divorce proceedings was made. In the light of these terrible events the court allowed the husband’s application that it should think again about how the assets should be distributed.
A couple of recent cases have considered whether a final settlement should be reopened when a former wife remarries shortly after the court order is made. As part of the initial court process on financial remedies on divorce, both people have to state whether they currently intend to remarry or live with anyone – this is relevant to the questions of maintenance and distribution of assets. So long as neither person has deliberately misled the court about their true intentions at the time the original order was made, a court will be unlikely to reopen it, but any deception runs the risk of a retrial.
When considering what other events might prompt a court to reopen a “final” order on the basis of a change in circumstances, market fluctuations in the value of assets are not enough. It is fairly common for property or assets such as shares to be sold as part of a financial settlement. Assumptions as to the value of the property have to be made in negotiations and in litigation. With the fluctuations in the property and stock markets, we all run the risk that the eventual sale price may bear little resemblance to the figure used in negotiations or court. Recent cases have shown that in the absence of deliberate delaying tactics or other skulduggery, a court will not be interested in reopening a case simply because one person has received an unexpected windfall or lost out due to market conditions – this is considered to be all part of the rough and tumble of the process.
There is rightly a high hurdle to jump before it is worth attempting to reopen an order. There is no mechanism for changing an order which people are simply unhappy with. For an application to reopen a final order to be successful, that application must come very quickly after the discovery of dishonesty, and any event which undermines the fundamental basis of the order must usually happen within a few months of the order being made. Any delay in referring the matter back to court may lead to the application being refused by the court. This is not an exercise to be undertaken lightly and if you’d like to talk it through, please give one of us a call on 01223 443333.