Divorce processes, often fraught with many legal and emotional complexities, areresolved by parties reaching a Final Agreement on a Consent basis, or FinalOrders issued by the Court. These Orders stipulate the financial terms ofsettlement between the parties and can be about divisions of assets, andallocation of resources.
In some circumstances, the parties need to change the final orders and a questionarises as to whether we can legally do that or not.
Generally,the courts may be reluctant to reopen such matters as the main aim is to avoid re-litigationof matters. However, there are some circumstances in law where a final propertyorder can be set aside.
The circumstances in which a property order can be set aside are provided forsection 79A (1) and (1A) of the Family Law Act, 1975 (the “Act”)
The law states;
79A Setting aside of orders altering property interests
(1) Where, on application by a person affectedby an order made by a court under section 79 in property settlementproceedings, the court is satisfied that:
(a) there has been a miscarriage of justice byreason of fraud, duress, suppression of evidence (including failure to discloserelevant information), the giving of false evidence or any other circumstance;or
(b) in the circumstances that have arisensince the order was made, it is impracticable for the order to be carried outor impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out anobligation imposed on the person by the order and, in the circumstances thathave arisen as a result of that default, it is just and equitable to vary theorder or to set the order aside and make another order in substitution for theorder; or
(d) in the circumstances that have arisensince the making of the order, being circumstances of an exceptional naturerelating to the care, welfare and development of a child of the marriage, thechild or, where the applicant has caring responsibility for the child (asdefined in subsection (1AA)), the applicant, will suffer hardship if the courtdoes not vary the order or set the order aside and make another order insubstitution for the order; or
(e) a proceeds of crime order has been madecovering property of the parties to the marriage or either of them, or aproceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, varythe order or set the order aside and, if it considers appropriate, make anotherorder under section 79 in substitution for the order so set aside.
(1A) A court may, on application by a personaffected by an order made by a court under section 79 in property settlementproceedings, and with the consent of all the parties to the proceedings inwhich the order was made, vary the order or set the order aside and, if itconsiders appropriate, make another order under section 79 in substitution forthe order so set aside.”
Insimple terms, it means that the courts can set aside a final property order incircumstances where the court is satisfied that;
➔ Both parties consent to it.
➔ There has been injustice due to false evidence, fraud, duress, orsuppression of evidence.
➔ It is impractical to carry out the order or part of it.
➔ A person has defaulted in carrying out the order.
➔ There are special circumstances due to which a person with theresponsibility of the welfare and care of a child comes under hardships.
➔ A proceeds of crime order has been made for the property of theparties.
The first possible way in which youcan set aside a final property order is by consent of all involved parties.
A very common situation is where thereis a miscarriage of justice. This can happen when either party commits fraud,submits false evidence to the court, suppresses evidence (intentionally hidesor fails to disclose the assets or property values), or puts the other partyunder duress (under pressure or threat).
If the conduct which gave rise to theargument of there being a miscarriage of justice, is such that it would not haveaffected the orders which the Court ultimately made, then the courts will notset aside the final property order.
In a situation in which complying withthe order is not possible, courts can set aside a final property order. Thecourts do not consider situations in which it is unjust or merelydifficult for a person to comply with the order. The circumstance hasto be such that it makes it unattainable or impossible to comply with theorder.
The courts can reopen orders if aparty fails to comply with the orders and the courts consider it “just andequitable” to rectify the default.
However, there is a principle in lawthat a party should not benefit from their own wrongdoing. To uphold thisprinciple the courts have held that the party’s default must be due to acircumstance which is out of that party’s control. Ie- the order could not becomplied with in that form.
In exceptional circumstances, where achild’s welfare, care or development is at stake, courts are more likely to setaside the final property order.
Examples of exceptional circumstancesinclude but may not be limited to, a child being diagnosed with lifethreatening or chronic illness after orders were made, sudden death of a partyafter the order, or failure to pay child support.
After establishing that there wereexceptional circumstances, you will need to prove that you will suffer hardshipif the order is not set aside.
This is a very rare scenario whichinvolves proceeds of crime orders against a party’s assets. Even though thisground is established, it still is the court’s discretion in deciding whetherto set aside or vary final property orders
At Hillcrest Family Lawyers, we make sure that you havea team that delivers along with making the process stress-free for you. If you need any assistance, consultancy, or advice on the matter, you can contact us.
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