Your divorce settlement may be unfair if you receive an unequal division of assets or inadequate spousal or child support. Under the law in England and Wales, divorce settlements are normally supposed to be fair and equal for both parties. However, how marital assets are split following divorce or dissolution and how much spousal maintenance and child support are granted by the courts can be swayed by a range of factors.
Under the no-fault divorce process in England and Wales, it is no longer possible to contest an application for divorce. However, having a pre-nuptial agreement or post-nuptial agreement can play a key role in divorce settlements.
If you are currently going through divorce or dissolution in the UK, to ensure that you have a fair settlement, or if you are concerned that your divorce settlement is unfair, please speak to our divorce solicitors who will ensure you get the outcome that you and your children deserve.
Can a divorce settlement be reopened in the UK?
A court in England or Wales may reopen a divorce settlement (financial settlement) if it can be shown that there has been:
- A material change in the spouses’ circumstances, or
- Material representation (e.g. dishonesty or fraud) when disclosing matrimonial assets.
You may also be able to appeal a divorce settlement if the decision made by the judge was wrong because of a serious legal mistake. It is important to bear in mind that divorce financial settlements are supposed to be final and, therefore, are only reopened by the courts in the most exceptional cases. If you make a successful appeal you may receive a larger divorce settlement or spousal maintenance.
Material change in the circumstances
A financial settlement order may be reopened if something has happened that changes the basis on which the order was originally made (e.g. death, remarriage, cohabitation). For the courts to reopen an order, key factors must be satisfied:
- The new event must have occurred since the order was made that invalidates the basis, or fundamental assumption, on which the original consent order was made – e.g. if one person receives a large inheritance
- The new events must have occurred within a relatively short time after the consent order was made
- The request to re-open the financial settlement must submitted to the court as soon as possible after the new event occurs
- The appeal must not prejudice any rights to assets acquired by third parties. E.g. if a property has been sold to a third party.
Dishonesty or fraud
In exceptional circumstances, the court may reopen a divorce financial settlement if it can be shown that one party failed to provide full and frank disclosure regarding their assets and incomes. For example, if they were hiding assets in a divorce or income on Form E (Financial Statement for a Financial Order or for financial relief after an overseas divorce or dissolution), it is possible that the judge will reopen and reconsider the settlement decision reached.
Can you renegotiate a divorce settlement?
In England and Wales, it may be possible to renegotiate or vary a divorce settlement (financial order), but only under certain conditions. When considering an application to reopen or vary a divorce settlement, the courts will take into account a number of factors including:
- Any significant changes in circumstances
- A request for a clean break
- The welfare of the children
- Balance of responsibilities between first and second families.
Significant change in circumstances
The courts may vary a financial order, such as a maintenance pending suit or periodical payment order, if it can be shown that there has been a substantial change in the:
- Income of either partner
- Employment status of either partner
- Health relating to either partner, or
- Needs, obligations, and responsibilities of either partner
Another factor to consider is that of inflation. In the current economic climate, financial settlements with built-in inflationary increases can pose a significant financial burden. While reopening a financial order purely on the grounds of inflation may not be possible, it may be worthwhile including this as an additional consideration when making a variation application.
Request for a clean break
If you have now decided that you want a clean break from your ex-partner (i.e. to sever your financial link with your ex), it may be possible to have your divorce settlement reopened and amended to reflect this. According to the Matrimonial Causes Act 1973, the courts have a legal duty to consider an application for a clean break.
Welfare of the children
If the needs of your children have changed (e.g. due to health or education), it may be possible to reopen your divorce settlement and have amendments made to reflect the change in circumstances.
Balance of responsibilities between first and second families
You may be able to have your divorce settlement changed if this is necessary to balance your responsibilities to your existing and new family.
It is important to bear in mind that you do not necessarily need the help of the court to renegotiate your divorce settlement. Rather, you may be able to renegotiate your divorce settlement with your ex-partner outside of the court. You will still need to apply to the court for a variation order to make the new agreement legally binding and enforceable.
If you want to try to renegotiate your settlement with your ex-partner outside of the court, it is highly recommended to try alternative dispute resolution methods (e.g. mediation). A specially trained professional mediator can often find a resolution to even the most complex and difficult of divorce settlement matters faster and in a manner that preserves an amicable relationship. If you choose to use mediation, it can still be extremely useful to engage legal representation to help during the renegotiation process. Doing so will ensure you have someone who can handle the negotiation for you and who will help you avoid the costs involved with a lengthy legal battle with your ex-partner.
How to challenge an unfair divorce settlement in court
There are a number of steps in appealing a divorce settlement decision, as follows:
- Request permission to appeal – To appeal against an unfair divorce settlement, you may first need to request permission. If you plan to submit new evidence, you will need permission to do so. This should be made within 21 days of the decision.
- File your appeal – Once you have permission, file your appeal with the appropriate court and pay the required fee. It is important to act quickly, as you may only have a small amount of time to appeal to the courts. If the judge has not set a time limit to make an appeal, the application should be made within 21 days of the decision if permission is not needed.
- Copies of documents sent to your ex-partner – this can be done by the court or by yourself.
- Court issues notice – The court will send you a notice explaining when your appeal will be heard and what you need to do to prepare.
- Court hearing – The judge will hear the evidence, consider the case presented, and make a decision on whether the divorce settlement was unfair and should be changed accordingly.
