Reviewing a Financial Settlement after Divorce

Variation of maintenance

Significant changes in circumstances for either you or your former spouse may include:

• Retirement
• A substantial increase or decrease in income
• Loss of employment
• Ill health
• Windfalls of large sums of money (i.e. inheritance)
• Cohabitation (NB: spousal maintenance automatically ends on remarriage, not cohabitation unless specifically agreed at the time of the divorce)

We have a wealth of experience in both making and defending variation applications on behalf of our clients. We will work with you to understand your situation and advise you on how any changes in circumstances could impact on your or your former spouse’s financial obligations.

Where possible, we encourage our clients to reach an agreement through negotiation and other methods of dispute resolution such as mediation and collaborative law. Where agreement is not possible, a court application may be necessary. We understand that a return to court may not be attractive particularly if the original proceedings were prolonged and stressful. We will work with you to weigh up the benefits of pursuing or defending a variation application with other factors such as the likely cost and the potential impact on your family and your relationships.

Maintenance can be varied upwards or downwards, or even, in the case of spousal maintenance, capitalised with the paying former spouse providing a one-off lump sum to represent future maintenance payments and bring them to an end early. We will discuss with you all the options available and put forward the proposal or defence which best suits your needs.

In considering a variation application, the court will look at the basis for the original order, the circumstances which shaped its making and what has changed since it was made. We will investigate and analyse these elements with you and provide you with thorough and reasoned advice on the prospects of making or defending an application and the cost benefit in doing so.  We will also work with Independent Financial Advisors (IFAs) to assist you, if you are receiving maintenance,  in deciding what, if any, further capital (or pension share) will be required to bring your maintenance claims to an end or,  if you are paying the maintenance and thinking of making an application to reduce or terminate the maintenance, are at risk of paying to your former spouse.

Variation of capital

In very limited circumstances, certain types of capital orders can be varied such as lump sums by instalments, deferred lump sums and orders for sale.

Setting aside a financial settlement

There may be circumstances which come to light days, months or years after a financial settlement which undermine or invalidate the whole or part of the settlement. This could justify the order being set aside and your case being decided again.

Relevant circumstances may include:

• An unforeseen and unforeseeable event occurs shortly after the settlement
• Negligent or inadvertent, or fraudulent, non-disclosure

For example, if following your financial settlement you discover that your former spouse failed to disclose a substantial asset in the proceedings, and this would have made a difference to the outcome or the agreement you reached with your former spouse, we can advise on the prospects of a set aside application. Equally, if your former spouse wrongly accuses you of not properly disclosing the full extent of your financial position in the original proceedings, we can assist you in robustly defending any application that is brought.

Appeals

Sometimes the court gets things wrong. If you feel that your case was decided wrongly, we can assist with bringing an appeal against the court’s decision. We will review your case and the order made to give you a realistic view on whether you have grounds for appeal and the prospects of success.

An appeal will be allowed if the court’s decision is found to be:

• Wrong
• Unjust because of a serious procedural or other irregularity

Appeals need to be brought within a short time frame so it is important to act quickly. Our team is accustomed to acting quickly to assist clients. We work with some of the leading family law barristers in the country who have extensive experience at all levels of the court system (up to the Supreme Court) to provide clients with the best possible advice including where time is of the essence.

Appeals can be expensive and time-consuming so we will help you conduct a cost benefit analysis to ensure you make the right decision for your individual circumstances.

Examples of our team’s experience

• Acting for the husband in defending an application by his former wife for their financial settlement to be set aside and for a substantial increase in spousal maintenance. The husband and wife had divorced many years previously and subsequently the husband had made a success of the company he established. The wife had retained a shareholding in the company by error but she argued she was entitled to the shareholding and asked for the order to be set aside and re-made to reflect this. The wife also argued for higher spousal maintenance payments on the basis of the husband’s higher income. We successfully defended the husband at a final hearing, leading to the wife’s application being refused in full, the wrongly retained shareholding being transferred to the husband and a costs order being made against  the wife.
• Acting for the husband in defending an application by his former wife to set aside their financial settlement on the basis that he had failed to fully disclose his financial assets.
• Representing wives in several cases against applications from their former husbands to vary or terminate their maintenance on the basis of the client’s cohabitation or other change in circumstance.
• Advising several high earning husbands with joint lives orders who are approaching retirement and want to end their financial obligations to their former spouse.