Advice on divorce proceedings by Kent expert

PUBLISHED: 13:24 18 March 2011 | UPDATED: 17:45 20 February 2013

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 it's made?

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!

Profile

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.





If you value what this gives you, please consider supporting our work. Click the link in the yellow box below for details.

More from People

Tue, 13:45

There are tons of apps to choose from, and it seems like we use different ones depending on the situation. Here are some of the best video calling apps.

Read more
ThereWithYou

April sees the bicentenary of the death of William Mudge, the brilliant soldier turned surveyor responsible for the first map to be produced by the Ordnance Survey – and it was of Kent

Read more

Battersea’s rehoming centre Brands Hatch, which has just celebrated its 20th anniversary, offers a peaceful rural sanctuary for dogs and cats

Read more
Tuesday, March 31, 2020

Jools Holland, OBE, on his music, being a Deputy Lieutenant of Kent and why he loves Rochester

Read more

We’re all familiar with blue plaques, but could Kent Life come up with 10 notable births in our county – avoiding the most obvious ones? See if you agree

Read more
Tuesday, March 31, 2020

It’s the perfect time to get out in the garden and get some motivation. Here is a roundup of all the fun and relaxing activities you can do in your garden.

Read more
ThereWithYou
Thursday, March 26, 2020

It’s not all about crossing your legs and humming, you can meditate anywhere and at anytime – even when putting the kettle on.

Read more
ThereWithYou
Wednesday, March 25, 2020

We may be stuck indoors and the clubs and gyms may be shut for now, but we can all still stay active and healthy.

Read more
ThereWithYou
Monday, March 23, 2020

Bethany School in Kent shares its Philosophy of Learning

Read more
Monday, March 23, 2020

Social distancing doesn’t mean you can’t get your much needed Arts fix. You can now enjoy the magic of theatre from the small screen!

Read more
ThereWithYou
Kent Life Food & Drink awards. Open for entries.

Subscribe or buy a mag today


subscription ad


Follow us on Twitter


Like us on Facebook


Local Business Directory

Search For a Car In Your Area

Property Search

Most Read

Latest from the Kent Life