Variation of a previously made financial court order
When a marriage or civil partnership breaks down, the parties will need to sort out their finances to reflect their new domestic situation. In the vast majority of cases, this is achieved by agreement, confirmed by a court order. If the parties cannot reach an agreement they can apply to the court for a judge to decide on a fair solution: this will also be made into a court order.
Is a court order final?
A court order relating to finances on the breakdown of a relationship is made taking account of
- all the relevant factors existing at that time and
- any predictable future circumstances.
Once the court order has been made, it is regarded as final and the general rule is that it will not be changed.
What happens if events do not turn out as expected?
It sometimes happens that what was anticipated when a court order relating to finances was made, does not occur.
In one leading case, the mother, who was to have the main care of the two children of the relationship, was awarded a sum of money to enable her to purchase a house. This meant that the father was to receive significantly less than the mother but that arrangement was considered fair in all the circumstances. Shortly after that court order was made, the mother died. Obviously, alternative arrangements were going to have to be made for the children and the purchase of the house, contemplated at the time the original court order was made, would not take place.
In this case, the father was permitted to appeal the original order on the grounds that the circumstances existing at the time of the original order had changed by the new event i.e. the unexpected death of the mother.
When is it possible to apply to vary a court order?
The law now states that if the circumstances which were relevant to the making of the original order change in a way that cannot have been predicted, then an application to vary that order can be made.
There are 4 conditions that have to be met before an application to vary the original order can be made:-
- the new event or changed circumstances must invalidate the basis on which the original order was made
- the new event must have occurred within a relatively short time after the original order was made. That is usually taken to mean less than 12 months
- the application to the court to vary the original order must be made promptly
- the rights of a third party, properly acquired, e.g. by purchase in good faith, must not be prejudiced by the making of a new court order.
What amounts to a change of circumstances or a new event?
It is fundamental to any application to vary a court order on the grounds that the basis on which it was made have changed, that the changes could not have been contemplated at the time the order was made.
There have been some cases that have come before the court in the last six months or so where precisely this question has had to be answered. The short answer is that covid would be regarded as an unpredicted and new event. Whether its arrival means a change in a court order depends on its effect on the parties in each case and the continuing fairness or otherwise of the original order.
This is a difficult and technical area of law where developments are occurring. Anyone affected by such circumstances would be wise to take early legal advice.
If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone.