We had a case decided recently where a husband was applying to set aside to consent orders (agreed orders) made in 2010 and 2013. The reason, basically, was that two of the properties that the husband took as part of the settlement ended up being worth a lot less, could not be sold and one was repossessed. That, said the husband, is unfair because now he was left with a lot less than the wife. Yes, he accepted that he had traded and made the agreements giving the wife money so that he could keep the properties – and, as an aside, I do not think he would have done that unless he saw an advantage to himself and was willing to take the risk that property values can go down as well as up.
The judge (Mr Justice Mostyn) was impressed by the ingenuity of the argument by the husband’s solicitors but ultimately, the argument failed. It is a fairly technical run through of the powers of the court to vary an order for periodical payments (maintenance) or lumps sums payable by instalments.
He confirmed that the grounds for an order to be set aside remain as the ‘traditional grounds’ only:
- if there has been fraud or mistake
- if there has been material non-disclosure
- if there has been a new event since the making of the order which invalidates the basis, or fundamental assumption, upon which the order was made (must be within 12 months)
- if and insofar as the order contains undertakings
- if the terms of the order remain executory
The court rules do not, he said, give the court power to relook at a case because one party thinks it is now not fair.
The message I always give when a financial order is being signed is that it is final and you do not sign it unless you are absolutely sure that you want to be held to it. Think before you agree and sign, basically, of all of the things that could go wrong -property prices going up and down, investment prices going up and down. There is a reason why solicitors will advise against one party having all the risky assets and the other having the ‘copper bottomed’ assets.
If you need help with sorting out your financial matters, contact me.