By Vanessa Lloyd Platt
Over the years as a divorce practitioner, many clients have asked whether a financial order is intended to be final or not. Most consent orders, approved by the Court are final. However, there are limited circumstances where consent orders can be varied by the Court.
Orders for payment of maintenance can always be varied if the circumstances change for the better or worse. Courts have always accepted that circumstances can change. The party who has been ordered to pay the maintenance can lose their job or receive a reduced salary, or the party receiving the maintenance may commence a job that pays a significant sum. Either of these circumstances can lead to the parties applying for a variation of the maintenance order.
If an application is made to the Court to vary a maintenance order, the Court has a very wide discretion as to how to deal with the application. Section 31.7 of the Matrimonial Causes Act 1973 simply states that the Courts have regard to all the circumstances of the case, first consideration being given to the welfare of any children under the age of eighteen, and the circumstances of the case will include any change in circumstances since the order was made which have arisen.
In the majority of cases there would have to be a change in circumstances in order for the Court to order a variation of the maintenance order. If, however, a party deliberately chooses to increase their outgoings by, for example, buying a bigger house with a bigger mortgage, then the Court will not consider that that is a change of circumstances that will warrant a variation downwards of their maintenance payments.
Similarly, if a party remarries someone who has significant assets, including income that is going to be utilised towards the family expenditure, then an application can be made for a variation upwards since it can be argued that the party’s income has been freed up by the contribution being made by their new wife or partner.
Applications for variation, particularly those applied for downward variations, still have the effect of stopping the orders temporarily until the Court can determine whether there should be a variation made. However, if the Court determines that you could have been making payments throughout and have chosen not to do so, hiding behind the application, then they would order the arrears to be made and may order you to pay the legal costs. The moral of this is that applications for variation should only be made if the circumstances would warrant it.
The ability of the Court to vary other types of orders in a consent order is much more limited. In some circumstances the following orders can be varied:
- An order for the payment of a lump sum, but only if the lump sum is payable by instalments, in which case the Court can consider extending the time for payment.
- An order for sale of the property. If difficulties have arisen because of the market, then the Court can extend the time.
- A Pension sharing order, where it is intended that the pension should be shared between the parties. Only in very rare cases where the application to vary is made before the final order of divorce, formally known as Decree Absolute. Once the decree has been made, the Court can’t vary.
This means that the Court can’t vary lump sum orders except those made by instalments. It cannot vary the order to transfer property, although they might be able to extend the timing, or the vast majority of pension sharing orders. Parties should realise that orders made will be final except those in highly exceptional circumstances where the whole order might be set aside.
Those cases are limited to where it has been demonstrated that there has been fraud, monetary nondisclosure or material nondisclosure by one of the parties during the proceedings. In which case if this would have made a difference to the settlement at the time it was made or imposed by the Court, the Court can set it aside.
Further, if there has been a very unforeseen event, known as a Barder event, which undermines the whole basis upon which the order was made, the Court can again set aside the order. These kinds of events are exceedingly rare and do not apply in most cases.
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