How to set aside an order in financial remedy proceedings

My ex-spouse didn’t tell the truth about their finances when we divorced, can anything be done?

Can the financial settlement from my divorce be set aside?

These are some questions you might be asking post-divorce. This post will look at how and when a court may be able to set aside an order in financial remedy proceedings.

There are three main grounds for setting aside a financial remedy order:

1. Fraud or fraudulent non-disclosure

“Fraud unravels all” (Hale LJ, Sharland v Sharland [2015] UKSC 60). If it can be demonstrated that there was fraudulent non-disclosure during proceedings, then generally the court will set the order aside.

However, the exception is if the party accused of fraud can prove that the fraud would not have influenced a reasonable person to agree to the order; and that the court would not have made a significantly different order had it known at the time the order was made, what it knows now.

2. Inadvertent or negligent non-disclosure of facts

If the court would have made a substantially different order, had it been aware of the non-disclosure, it will set aside the order.

In Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424, the wife did not disclose her engagement and subsequent remarriage at the time she entered into a consent order. This fact undermined the whole case.

To set aside the financial order, the negligent non-disclosure must be ‘material’ in nature. What is ‘material’ varies on a case-by-case basis. In subsequent cases, the court has provided some guidance as to what ‘material’ is. In the case of Gohil v Gohil [2015] UKSC 61, the court stated that where a party’s non-disclosure is inadvertent, there is no presumption that it was material and the onus is on the other party to show that proper disclosure would, on the balance of probabilities, have led to a different order. However, where a party’s non-disclosure is intentional, it is deemed to be material; it is presumed that proper disclosure would have led to a different order, unless that party can show, on the balance of probabilities, that it would not have done so (the case of Sharland v Sharland [2015] UKSC 60).

3. Mistake

A mistake is where the court, through no fault of the parties, does not have the true facts at the time the order is made. The applicant must show that a substantially different order would have been made if the true facts were known.

The applicant must show that, at the time of making the original order:

• It was not their fault that the court did not have the true facts; and
• They could not have reasonably established the true facts.

The application to the court must be made reasonable promptly and should not prejudice third parties who have, in good faith, acquired any interests in property due to the subject matter of the original order.

Because of the caveats, the court is generally reluctant to set aside an order on the grounds of a mistake, although that does not mean it is impossible to do so.

If you would like to speak to a specialist in the family department, please contact Shivam, the trainee of Lisa Pepper or complete the online enquiry form below.