Varying Financial orders

When a court order is made, the hope is that the order is definitive. However, there will be times when one party considers that the order needs to be varied. This could happen soon after the original order was made or it could be years, even decades, later.

Variation

Not all orders by the court can be varied; it is important to understand what terms can be varied and which cannot. Variation of an order is appropriate where something has happened after the order has been made that justifies inviting the court to reconsider a term of the order. In some circumstances, the court may find that the new information or event is enough to justify reconsidering the entirety of the order as a whole – this is called a set aside.

It is also important to understand that simply being unhappy with the outcome is not a good enough reason to apply for variation. Variation is a very technical area of law and only specific terms can be varied. For example, generally only orders related to income can be varied but there are exceptions to this rule.

Applications to vary can be quite technical and can be expensive applications to make. It is therefore important to discuss with a family law specialist whether the order is capable of being varied, whether there are sufficient grounds to make the application, the likelihood of success and whether the application would be proportionate.

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Alternatives to variation

There are other avenues to consider if the final financial order needs changing. These include:

  • Appealing - this is appropriate where the court made an error in their reasoning or did not consider something that they should have done when making the order. In most cases, you will first need to seek permission of the court that made the decision or permission of a higher court to allow you to apply to appeal.
  • Barder - this is a very limited base on which to change an order. It requires an unforeseeable and unforeseen event occurring shortly after the order was made that fundamentally invalidates the order itself. It is very rare that this will be the case.
  • Slip rule - where an order is agreed and finalised but contains a minor error or typo, it can be amended under what is called the ‘slip rule’.
  • Liberty to apply - this is a term contained in all orders which allows a party to apply back to court if they need assistance from the court to give effect to an order.

As with variation, the above options are not opportunities for you to replace a term or order that you simply don’t like. There must be a justified reason in law to make each one of the applications.

How we can help

There are various different avenues available to someone who wants to change a final order. This could be an application to vary or appeal or could be a set aside application or Barder event. Each option has very specific requirements and will only be appropriate in certain circumstances. Our lawyers will consider your situation, the order you have and what you are seeking to achieve. They will be able to advise you on what options are available to you and support you through the choice you make.

We are experienced in making applications to varying existing orders, as well as representing respondents to applications to vary.

In one case, we successfully renegotiated a financial settlement where the original order was over 50 years old and there was no copy of its terms.

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Our team of specialist family lawyers are here to support you if you're facing issues related to varying financial orders. Speak to our team today. 

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Varying financial orders FAQs

Only specific orders can be varied and they each come with their own stipulations. You can vary maintenance orders, orders for lump sums by instalments, provision for children, deferred lump sums, settlement of property orders and sale of property orders. You can also vary a pension sharing order if the application made before the conditional order in divorce is made final. Each type of order will come with specific stipulations on when it can and can’t be varied so you should seek expert legal advice if you wish to vary any order.

You cannot vary an order for lump sums or property adjustment orders. You also cannot vary a pension sharing order once the conditional order in divorce has been made final.

You can apply for variation of an order anytime after the order has been made.

At the end of most court orders, you will see a term which says ‘Liberty to apply’. This enables both parties to apply back to court for assistance if the order terms need court intervention to be implemented. For example, the order may make an order for sale but one party is refusing to sign the contract for sale. The other party can apply back to court under Liberty to Apply to invite the court to sign the contact on the breaching party’s behalf. Liberty to apply cannot be used to reopen or change the order’s terms. It can only be used in order to ensure implementation of the original terms.

The Barder principle is based on a case called Barder v Barder (1987). The principle allows a party to challenge a final financial order on the basis that something has happened since the order was made that was unforeseen and unforeseeable, and that fundamentally invalidates the basis of the order. There are certain criterium that must be met for something to be a Barder event including that the event must have occurred shortly after the order, the application is made promptly and that there would be no prejudice to a third party. What is and isn’t a Barder event will depend on your specific circumstances so you should seek legal advice if you believe something has happened after an order which invalidates it.

The slip rule is a specific rule under the Family Procedure Rules which allows an order to be amended if there is only a minor error that needs correcting so that the intention of the court is honoured. This is most often used where there is a typo in a name or date. These applications are often dealt with very swiftly by contacting the court, rather than having to make a separate application. It is not appropriate to use the slip rule to add in new terms to the order or otherwise change the effect of the order.

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