Appealing a financial order on divorce

When the County Court awards Judgment of a financial nature to one party to a divorce, it can often happen that the Respondent will want to challenge such an Order. Whilst on many occasions this will be simply out of a personal conviction that the Order is unfair, there are procedures in place to allow the Respondent to appeal or set aside the Financial Order if they have valid reasons. Additionally the Applicant may wish to appeal or set aside the decision if they are dissatisfied with the amount eventually awarded to them.

 Appeal

 Whichever party makes the appeal against the Judge’s Order, it can only be made within 14 days of the Order itself. It is therefore crucial that each party seek advice on the outcome of the hearing and the Order as soon as possible so as to decide whether it is appropriate to pursue an appeal.

Any appeal will usually only review the decision itself rather than the actual facts of the case. In certain cases, where there was an inadequate finding of fact by the Judge or there had been a procedural irregularity, then the Judge can rehear the entire case.

Should a party wish to introduce new evidence to an appeal they can only do so where the Court considers it to be in the interests of justice. An example of this would be where the evidence was not available to that party at the original hearing and had they been aware of it the information would have formed an important factor in the result of the case.

If an appeal fails there is a possibility to take the matter further, to the Court of Appeal, however this is only available where the Court of Appeal considers that such a case would raise an important point of principle or practice, or there is some other compelling reason for it to be heard.

Setting Aside

Whilst this procedure is available to either party, the Courts are generally reluctant to set aside Financial Settlement Orders on Divorce for reasons of certainty.  Both parties should be able to live and plan their future lives without worrying whether their Divorce Settlement will be re-opened and change the basis of their plans.

In order to limit this from happening an application to set aside the Order can only be made on narrow grounds, including:

• Non-disclosure of material evidence – Where the duty of full and frank disclosure by each side has been breached the Order may be set aside, however not every non disclosure will have this result. The non-disclosure must have resulted in the Court granting an Order which was substantially different from that which would have been granted had the true facts been known.
• Fraud – for example where one party has deliberately misrepresented the size of their assets.
• Events occurring after the Order was made – to use any subsequent event as the basis for an application to set aside the Order, the event must invalidate the basis upon which the Court Order was made, it must occur in a relatively short period of time after the Order was made, the application to set aside must be made promptly after the event and the granting of the application must not prejudice the rights of a purchaser for value of any property in question between the parties.

Where the Order deals with assets which have a dramatic change in value shortly after the Order is made, the Courts have set out guidelines for when they would be willing to set aside the Order due to these changes.

1. Where an asset was taken into account which was valued correctly at the time of the hearing, only its value changed shortly afterwards owing to the natural process of price fluctuation, the Court will not view this as justifying an application to set aside the Order.
2. Where the wrong value was given to an asset considered at the hearing and the difference in value would have led to a different Order and the mistake was not due to the person making the application, then the Court has discretion to set aside the Order.
3. Where something unforeseen and unforeseeable happens to an asset to change its value drastically after the hearing which causes a substantial change in the balance of assets split between the parties, then the Court should set aside the Order, provided the other conditions in relation to time and property have been met.

It should be noted that this means there are only very limited circumstances where a change in value shortly after an Order is made will allow for an application for the Order to be set aside. Even a huge drop in share prices, changing the parties wealth drastically, has been seen by the Court to be ‘owing to the natural process of price fluctuation’ and therefore not a reason to set aside the Judgment.

When looking to set aside a Judgment it can be done in one of two ways; either by applying for permission to appeal out of time to the relevant appeal court, or to apply for the Order to be set aside at the Court which heard the original case. In most cases either procedure can be used, however it would seem that where the applicant is basing his grounds on non-disclosure or fraud, the appropriate method would be to apply to set aside the Judgement, whereas if they were using supervening events as their basis, then leave to appeal out of time is to be preferred.