Divorce proceedings can be emotionally and financially challenging and it is crucial to ensure a fair division of assets between both parties. However, there are instances where a financial order may need to be set aside due to various reasons. In this blog post, we will explore the key elements and relevant case law surrounding the process of setting aside a financial order in divorce law in England and Wales.
- Material Non-Disclosure:
One of the primary reasons for setting aside a financial order is material non-disclosure. This occurs when one party acts dishonestly by undervaluing their assets or failing to disclose certain assets during the divorce proceedings. Both parties have a duty to provide full and honest disclosure of their financial circumstances to the court.
- Fraudulent Non-Disclosure:
If it can be proven that there was fraudulent non-disclosure during the proceedings leading to the financial order, the court will generally set aside the order. In the landmark case of Sharland v Sharland [2015] UKSC 60, the Supreme Court held that “fraud unravels all.” However, there is an exception if the fraud would not have influenced a reasonable person to agree to the terms of the order and the court would not have made a significantly different order even with knowledge of the fraud.
- Negligent or Inadvertent Non-Disclosure:
Setting aside an order based on negligent or inadvertent non-disclosure is more challenging. The court will only consider setting aside an order if it can be shown that the order would have been substantially different had the undisclosed facts been known. In the case of Jenkins v Livesey (formerly Jenkins) [1985] A.C. 424, the court emphasised that the non-disclosure must be material in nature and warned against applying to set aside an order based on a relatively minor matter.
- Mistake:
Setting aside an order based on mistake is also difficult. The applicant must demonstrate that a substantially different order would have been made if the true facts were known. It must also be shown that it was not the applicant’s fault that the court did not have the true facts and that the application does not prejudice any third parties who have acquired interests in property due to the original order.
- Case Law:
Several significant cases have shaped the principles surrounding setting aside financial orders. In addition to Sharland v Sharland, the case of Barder v Barder [1987] 2 FLR 480 established the concept of “Barder events.” These events refer to unforeseen and unforeseeable events that occur shortly after the order is made, which invalidate the basis of the order. Barder events are rare and fact-specific and the court may set aside an order if such an event occurs.
Setting aside a financial order in divorce law is a complex process that requires meeting specific criteria and providing compelling evidence. Material non-disclosure, fraudulent non-disclosure, negligent or inadvertent non-disclosure and mistake are the key elements involved in seeking to set aside a financial order. Understanding the relevant case law, such as Sharland v Sharland and Barder v Barder, can provide valuable insights into the court’s approach to these matters.
If you believe that your financial order should be set aside, it is essential to seek independent legal advice to navigate the process effectively. That’s where we can help. As specialist divorce lawyers we have a team of experts on hand ready to assist you. Why not give us a call on 020 7537 7000 or email peter@london-law.co.uk for a free no obligation quotation and see what we can do for you?
This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 22nd February 2024 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found Here