Reviewing a Financial Settlement after Divorce

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After a divorce, there may be circumstances in which it is appropriate to revisit the terms of the financial settlement. Our team of family and divorce lawyers can review your settlement in light of the circumstances and advise you on whether changing or challenging the court order may be possible.
 

A typical financial settlement on divorce deals with capital and income.  The capital element is intended to be final and can only be revisited in comparatively rare circumstances, as set out below.  The income element – spousal and/or child periodical payments (maintenance) – is open to variation and either party can apply to court to request a variation of maintenance if there is a material change of circumstance.   For example, where a court order provides for joint lives (indefinite) spousal maintenance, the paying person will often apply to court to reduce or end the maintenance when they retire.

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.

Further information

If you require further information or advice from our team of specialist family and divorce solicitors, please contact a member of our team or call us on +44 (0)20 7814 1200. Alternatively, click here to get started online and find out where you stand.

You may also be interested in reading some of our blogs about reviewing financial a financial settlement, including:

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Services

Financial Arrangements

The majority of divorces and separations involve consideration of the family's financial arrangements. Our lawyers are highly regarded for their ability to give practical and clear advice on the financial implications of relationship breakdown.

Financial Arrangements on Divorce

A number of factors are taken into account when considering financial arrangements on divorce. Our lawyers are experts in advising on and negotiating financial settlements for our clients.

The Court Process

Court proceedings are not always more expensive than alternatives to litigation. We consider carefully the financial impact of starting court proceedings and how, in the long term, your interests are best served.

Working with You and Other Professionals

We will work with you in ways that best suit your needs. That may involve us guiding and advising you in the background or representing you and fighting your corner in the courts. If required, we will call on additional support from other trusted professionals

Pensions and Divorce

Pensions are often the most valuable but also the most complicated asset to value and access during divorce proceedings. Our team of family and divorce lawyers has a wealth of experience dealing with pensions on divorce.

Alternatives to Litigation

Going through litigation and the court system is not always the best route for everyone faced with divorce or separation. We can guide you through alternatives to going through court such as mediation, collaborative law and arbitration.

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