How to set aside an order in financial remedy proceedings6 Oct 2022 | Lisa Pepper
My ex-spouse didn’t tell the truth about their finances when we divorced, can anything be done?
Can the financial settlement from my divorce be set aside?
These are some questions you might be asking post-divorce. This post will look at how and when a court may be able to set aside an order in financial remedy proceedings.
There are three main grounds for setting aside a financial remedy order:
- Fraud or fraudulent non-disclosure
“Fraud unravels all” (Hale LJ, Sharland v Sharland  UKSC 60). If it can be demonstrated that there was fraudulent non-disclosure during proceedings, then generally the court will set the order aside.
However, the exception is if the party accused of fraud can prove that the fraud would not have influenced a reasonable person to agree to the order; and that the court would not have made a significantly different order had it known at the time the order was made, what it knows now.
- Inadvertent or negligent non-disclosure of facts
If the court would have made a substantially different order, had it been aware of the non-disclosure, it will set aside the order.
In Livesey (formerly Jenkins) v Jenkins  1 AC 424, the wife did not disclose her engagement and subsequent remarriage when she entered into a consent order. This fact undermined the whole case.
The negligent non-disclosure must be ‘material’ to set aside the financial order. What is ‘material’ varies on a case-by-case basis. In subsequent cases, the court has provided some guidance on what ‘material’ is. In the case of Gohil v Gohil  UKSC 61, the court stated that where a party’s non-disclosure is inadvertent, there is no presumption that it was material. The onus is on the other party to show that proper disclosure would have led to a different order on the balance of probabilities. However, where a party’s non-disclosure is intentional, it is deemed to be material; it is presumed that proper disclosure would have led to a different order, unless that party can show, on the balance of probabilities, that it would not have done so (the case of Sharland v Sharland  UKSC 60).
A mistake is where the court, without fault of the parties, does not have the facts when the order is made. The applicant must show that a substantially different order would have been made if the facts were known.
The applicant must show that, at the time of making the original order:
- It was not their fault that the court did not have the facts and
- They could not have reasonably established the facts.
The application to the court must be made reasonably promptly and should not prejudice third parties who have, in good faith, acquired any property interests due to the original order’s subject matter.
Because of the caveats, the court is generally reluctant to set aside an order on the grounds of a mistake, although that does not mean it is impossible to do so.
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