It is a question we are asked increasingly by clients who have divorced. A volatile housing market, cost of living pressures, increased mortgage costs and inflation are all factors that have an impact on family budgets. So, if the financial picture your divorce settlement was based on has changed, can you go back to court and ask a judge to revise your settlement up or down?
The answer is that it is extremely difficult to reopen a financial settlement once it has been finalised. And there are good reasons for this which we will refer to below. We also look at examples of those rare cases where a settlement has been changed or ‘varied’ and highlight the need for caution and sound legal advice ahead of agreeing to your divorce settlement.
Why is it do difficult to change a financial settlement?
There are sound reasons for making it hard to vary your divorce settlement. When you agree how to divide your assets (or when a judge makes the decision for you) the resulting court order is intended to be final. The idea being that once you divorce, you and your ex-spouse’s financial ties are broken for good. This gives you both certainty and hopefully makes it easier for you to start afresh.
When will courts reopen a financial settlement?
To vary a financial order you must persuade a family court judge that something has changed since the order came into effect that has fundamentally undermined the basis on which it was reached. The type of event that might be viewed as fundamentally undermining the settlement is illustrated by the Barder case from 1987 where this narrow approach was first adopted. There, the wife killed her children and then committed suicide within a short period of the final order being made. The court decided the basis on which the order was made was so altered that it could be varied.
For the ‘Barder principle’ to apply:
- You must make an application to vary the financial order as soon as you become aware of the event on which you are going to rely on to persuade a judge of your case
- The event must take place shortly after the final order has been made
- You have to demonstrate that no third party will be prejudiced if the order is varied (for example where someone has acquired a former matrimonial property)
A final, crucial element in applying to vary a financial order is the requirement that the event relied on must be unforeseeable. This will normally exclude for example relying on the fact that you have lost your job or your house has dropped in value.
Do I need legal advice before agreeing a financial settlement?
Many people decide to handle their divorce without the assistance of a family law solicitor. And this is entirely feasible where, for example the marriage has been short, there are few financial assets and there are no children. However in most cases it is worth asking a solicitor to advise you on the terms of any settlement you are considering.
Even in cases that are relatively straightforward there may be assets like pensions or investments that need to be valued accurately before you decide how they should be treated in the settlement. At Gamlins Solicitors LLP we are happy to advise you on the financial aspects of your case even where you handle other aspects of the divorce process yourself.
As we have seen there is a high bar to clear before your financial settlement will be changed. It is important to remember that when agreeing anything about division of assets when you divorce, the agreement you reach will usually be final – so it will have an impact on your finances for years to come. Legal advice at this stage of your divorce is advisable in almost every case. In many cases where you are unable to meet your obligations under a financial order or you are seeking an increase in what you obtained originally, it may be possible to negotiate a change informally with your ex-spouse without involving the court.
If, having lived with the financial order in place for a period of time however, you think an event that meets the Barder criteria described above applies to your case, get in touch with our team of family and divorce solicitors for advice on the possibility of making a formal application to vary your financial order.
Aside from demonstrating that your case falls within the scope of Barder you may also be able to challenge the legality of an order if your spouse failed to disclose all of his or her assets at the time you reached a settlement. But again reopening a settlement in these circumstances will only be ordered in exceptional circumstances.
If you need any advice on a financial settlement you have reached or on the divorce process generally, please call us on 01492 532 275 or email us at firstname.lastname@example.org. Gamlins Solicitors LLP has a network of offices across North Wales and we can arrange an in-person appointment at the office that is most convenient for you or a remote appointment if you prefer.