Former husband fails to win new divorce settlement

By 24 December 2021News

A former husband has failed to in his bid for a new divorce settlement after a downturn in his fortunes.

He had been married to his former wife for 22 years when they separated and began divorce proceedings. Their two children were adults by that point. The wife had been a stay-at-home mother during the marriage.

In 2010, a ‘consent’ (financial) order was made by the family courts dividing their assets more or less equally. But the sums involved included projected profits from the future sale of two properties the husband was developing. The order stated that wife would receive her share of these via a lump sum payment, but by 2012 neither property had sold and the payment had not been made, so she returned to court. The following year the courts issued a new consent order in which the husband agreed to pay her the money (a substantial sum) in two instalments. He did so, and a “clean break” then came into effect, meaning the former husband would have no further financial obligations to her from that point on.

Subsequently the husband found himself in “dire financial straits” when the first property sold for less than anticipated and the second was repossessed. He therefore returned to court and applied for the original and subsequent consent orders to be “varied” (altered), to reflect the actual value of the former couple’s assets. This would mean his wife paying a large lump sum back to him. He argued that:

“… in the events which have occurred, the distribution of assets between husband and wife has transpired to be grossly unfair and in consequence the court would be well justified in intervening to remedy the injustice.”

The hearing came before veteran High Court Judge Mr Justice Mostyn. He considered the circumstances which might allow a consent order to changed, as set out in key marriage law the Matrimonial Causes Act 1973. The allows such orders to be set aside if:

  1. If there has been fraud or a mistake.
  2. If there has been “material non-disclosure” (failure to disclose something important).
  3. If there has been a significant event since the making of the order which invalidates the basis, or fundamental assumption, upon which the order was made.
  4. If the order contains undertakings that have not been met.
  5. If the terms of the order remain “executory” (are not yet completed).

Mr Justice Mostyn considered that the former husband’s situation did fit into any of the above categories and the court had no authority to create new grounds for setting aside consent orders in a divorce. He explained:

“…on the facts as pleaded by the husband, that the court has no lawful power to grant him the relief that he seeks. Therefore, his application is dismissed.”

Read the full ruling here.