How “final” are final court orders?
Once a property settlement has been decided by the court (or by consent), there are few options for changing that order. Generally speaking, courts are reluctant to look at any applications to set aside or change final court orders, but there are some exceptions.
A person wanting to change or vary a court order can do so for the following reasons:
- By consent between the parties, expressed or implied.
- If there has been a miscarriage of justice.
- If circumstances have arisen which make the order or part of the order impractical to carry out.
- A person has defaulted in carrying out an obligation and as a result of the default, it is “just and equitable” to vary or set aside the order.
- Where circumstances of an exceptional nature have arisen relating to the care, welfare and development of a child of the marriage or where the applicant will suffer hardship.
- A proceeds of crime order has been made affecting the property to be distributed.
An example of “implied consent” to setting aside an order could occur when two people have separated, but then reconciled at a later date.
It’s not uncommon for couples to divorce and then get back together. In a recent case, a couple initially separated in 1998 and had reached an agreement on their property settlement.
In 2000, they decided to get back together, but then split again for good in 2012.
The wife in this case asked the court to set aside the property settlement orders made in 1998, on a number of grounds including miscarriage of justice, and that she and her ex-husband had an implied agreement to vary those orders when they reconciled.
Her initial application to the court was dismissed, but on appeal it was decided there had been a miscarriage of justice for a number of reasons, including:
- The wife’s lack of literacy and understanding of the terms of the document.
- The wife did not received advice about her likely entitlements.
- The wife signed the consent orders in front of a clerk of the court who did not provided legal advice and did not ensure the wife understood the orders.
- The husband’s solicitor presented the order to the wife and read them to her.
- The wife did not receive any disclosure documents from the husband prior to signing the consent orders.
The court found that the couple’s reconciliation was not itself sufficient to show the pair had implied consent to setting aside the orders, but due to the length of time of the relationship – 30 years – and the contributions by both parties, it would be unreasonable for the court not to take account of the entire relationship.
One important issue that should not be overlooked is the requirement for “full and frank disclosure” of all assets and liabilities. Failure to give full and frank disclosure of property and finances, whether deliberate or not, may have serious implications and can give one party – who later discovers the deception – the tool to re-open a court order.
Setting aside or varying an order due to being impractical, also requires careful scrutiny.
If one party goes bankrupt before paying out the other, that does not mean it’s impractical. It is unfortunate but in this situation, the aggrieved party would be subject to the usual bankruptcy provisions and be treated as if they were a creditor.
However, if a house and land was to be transferred and the house burnt down, this may amount to the order being impracticable.
In one case recently considered by the court, a man applied to the court to have final consent orders put aside. He alleged his ex-wife had given false evidence, and that he personally had received “incompetent” legal advice. He also told the court he and his ex-wife had started living together again.
The court found that while the ex-wife “generously” allowed her former partner to have dialysis treatment at her home, it was not evidence of them living together again. The court also found the ex-husband had received legal advice in both his native language and English, and that any evidence that was produced was credible.
His appeal was dismissed and cost orders were made in favour of the ex-wife.
If you have any questions about property settlements, court orders or any other family law issue, please contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected]
