The divorce process has long finalised. The negotiations, either outside or inside Court have finalised and, whether by agreement or by judicial intervention final Orders have been made. Decree Absolute has been issued. Then, some 6 months, 12 months, 18 months (or more) you discover that the Orders were based on a false premise. Your former partner has, deliberately you believe, obscured information and deliberately hidden assets during the divorce process.
What do you do?
Rightfully angered, you returned to your lawyer seeking that the Orders made be set aside and that your divorce settlement is negotiated or litigated afresh, now that the full picture of the financial circumstances at the time of the breakdown of the marriage are available to you.
But just how easy is this to achieve?
Unfortunately, when you see your Solicitor, he or she will have to advise you that this is not an easy task at all. Indeed, the preliminary enquiries that need to be undertaken before deciding to litigate often mean, once answered, that no actual steps are taken.
As a matter of public policy the Court wants to ensure that, insofar as it is at all possible, the Orders the Court have made (whether by consent or by judicial intervention) retain their integrity and the Court is very keen to ensure that finality between the parties are obtained once and for all.
Indeed, you will have been told by your Solicitor and indeed by the Judge’s you came across during the financial aspects of your divorce that there only is “one bite of the cherry”. Final orders are fully intended to be final.
Therefore, the threshold that you need to achieve in order to set aside an Order of the Court is extremely high.
This is true even if you can show, sometimes with relative ease, that your former partner either hid assets or deliberately mislead the Court prior to the order being made.
The recent case of Sharland, brought down by the Court of Appeal as recently as the 10 February 2014, reaffirms just how difficult it is to have the Court revoke its Orders and look at matters afresh.
The Court of Appeal reconfirms, for the avoidance of any doubt, the Court’s position is that there is a two stage test which any potential applicant must overcome.
The first test is to be able to show that the other party has deliberately withheld information from you and your legal team and the Court, which, if it had been disclosed would have otherwise altered the quantum of the asset base.
The second test, and the hurdle that is much harder to leap over, is that the Court must then consider as to whether, even if that information that one party had withheld from it, was known; would that have substantially changed the Order the Court had originally made.
In practical terms, you must be able to show not only did your former husband hide from the Court, say, £100,000. You must also be able to show that Court that if that £100,000 were taken into account when your case was being decided that it would have fundamentally impacted on the eventual decision and the outcome would have been quite different.
It is not sufficient for the difference to be slight. It is not sufficient for the difference to be “probably”. The Court has repeated, time and again, that the decision would have had to have been substantially different.
Assume for a moment that your former spouse had hidden from the Court a pot of gold which was of the same value (or indeed greater or, even slightly less) than the equity that was in your former property. If it were the case that your former property was the only real asset in the case then the hiding of that pot of gold would amount to a substantial difference to the outcome of your case.
If, on the other hand, your former spouse hid a bank account with, say, £10,000 – £15,000 in it then, depending on the asset base of your case it is unlikely that this additional fund would have substantially changed the outcome.
The Court appreciates that, on this scenario, an extra £10,000 – £15,000 would certainly be helpful to you and it may very well be the case that £10,000 – £15,000 would have been divided between you in some form or another.
However that is not to go so far as to say that the case would have been substantially different.
If it is the case that you do discover that your former spouse has hidden assets then it is worth investigating with your Solicitor, not only are you able to prove that you and the Court have been misled; but the more careful consideration is as to whether, had that asset been available, would have resulted in a different outcome.
If the answer is yes then an application to the Court to set aside the original Order could be strongly considered. If the answer is no then, whilst you and I could discuss other tactics to try and obtain some benefit from this hidden asset the sad reality is that litigation and the Court’s assistance are unlikely.