Advice on divorce proceedings by Kent expert

Advice on divorce proceedings by Kent expert

Advice on divorce proceedings by Kent expert

Divorce is challenging enough, but if something unforseen happens after your settlement, can you revisit a court order once its made?

Do you feel the tension between wanting certainty and living a little dangerously? When you make a choice are you taking a chance? If things do not turn out as expected, what do you do? What if this happens on your divorce settlement?

Can legal advice provide the answers?

The law tries to. However, one size does not fit all. Recession can mean that agreements made between a divorcing couple can be affected by a change after granting of the order. This leads clients to ask:-

Can orders be changed?

Occasionally, but the test applied is quite tough. There is an obligation on the person challenging an order to prove factors such as, fraud, mistake, misrepresentation, undue influence, non-disclosure of a material fact, or the unforeseen.

Lets take the unforeseen. In the previous recession some people found their settlements were no longer workable. The court was slow to permit settlements to be modified and laid down four conditions namely:

1. A new event had to invalidate the basis for the fundamental assumption on which the order was made.

2. The event had to occur within a relatively short time from the date of the order.

3. An application to the court for leave to appeal must be made reasonably promptly.

4. There should be no prejudice to people who have acted in good faith based on the order made.

One reason to look for modification is changes of asset values. In the 1994 case of Cornick a wife attempted to vary a settlement after the husbands share values shot up enormously very soon after the order was made. The appeal on that occasion failed because it was said to be a change in good fortune of the husband that could have been predicted.

In 2010 is it any easier to unpick orders?

We are again in recession and assets are changing in value, invariably downward. However, in the case of Walkenden it was decided that a dramatic change in share values was nothing more than the natural process of price fluctuations so was foreseeable. It still remains difficult.

Would a change in the value of a home be treated differently?

Probably not. In the 2008 case of B it was alleged that the value of the home was wrong due to a misrepresentation by the husband. The court heard evidence of significant increase in the value of the property after the home was retained by the Husband. This was partly caused by a rise in the property market and partly through the husband doing work on the property. The court found that these factors whether they had been foreseen by the wife, or not, were reasonably foreseeable. Her claim did not succeed.

How foreseeable is the unexpected?

In Dixon v Marchant, in 2008 a former husband agreed to pay his former wife a lump sum to end maintenance. During negotiations she declared she had no plans to remarry (this would have ended maintenance with no lump sum). Six months after the order, she remarried. The husband appealed arguing that the remarriage invalidated the order that he pay. The court did not agree. They found no deceit or lack of disclosure by the former wife. The court believed her evidence that the remarriage had not been planned when the order was made.

While unexpected things do happen there is no guarantee that this will allow you to revisit a Court Order. It is important to think about all possibilities before it is made. But how can you plan for the unforeseeable or unexpected? Well, good legal advice is always a start!

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Dawn Harrison is a Resolution accredited specialist in the field of family law including divorce, separation, injunctions, financial provision, pensions and children. A qualified mediator and collaborative family lawyer, she is Chair of Resolutions Kent Regional Group.