Setting aside a Court Order

There are limited circumstances in which you can ask the Court to set aside an Order dividing property, such as when fraud has taken place or there was a failure to disclose relevant information, or where it is now impracticable for the Order to be carried out.

 As was considered in the recent case of Demeny & Ogden, the circumstances must indicate a miscarriage of justice.  The Court considered a situation in which the parties consented to final property Orders aiming to ensure an equal division between them.   The property pool included properties and debts.  Unfortunately, when the properties were sold the price achieved was less than expected. This resulted in one party being liable for the remaining debt and an unequal division.

Was there a miscarriage of justice?  Initially, the Court said yes however on appeal, the answer was no.  It was decided the alleged miscarriage of justice did not occur at or before the making of the Orders; the Orders themselves were drafted so that one party received a set sum with the balance to the other; and the magnitude of the difference was not considered sufficiently significant.

This decision highlights the importance of drafting final Court Orders to meet your intention, particularly where property markets are changing rapidly.  In this case, problems may have been overcome by referring to percentages rather than fixed payments prior to sale prices being realised.