Can I change my divorce settlement because of Covid?
- AuthorPhilip Hoddell
That was the question that came back before the High Court in the long running case of FRB v DCA (No.3).
What was the court’s original decision?
After nearly 3 years of litigation, the High Court made a decision on the case in March 2020. The husband (H) had to pay the wife (W) a lump sum in two instalments as well as paying off the mortgage on the family home and transferring it to her. He had to pay her substantial maintenance until the ordered lump sums had been paid.
What happened following the court’s ruling?
H did not make any of the payments. He claimed that many of his businesses had been substantially affected by COVID and he wasn’t now in a position to pay the original amounts ordered. H had already tried to appeal the original orders to the Court of Appeal but it had turned him down.
What was the basis of his application?
H claimed that COVID was a ‘barder’ event. This is a legal term from an old case where a new event effectively undermines the basis upon which the original order was made. The event has to occur within a relatively short space of time and of course H claimed that in March 2020 we didn’t know what was on the way in terms of lockdowns, economic problems and the significance of the pandemic itself.
What decision did the court make?
The judge was quite firm in stating that he was not going to revisit the original settlement just because of a change in the general financial situation of the economy. The onus was very much on H to show how that had affected him. The judge ruled that it was striking how little actual evidence H had produced to support his contention that there had been ‘an enormous reduction in my financial worth’. For that reason the judge refused his application. However, the court did indicate that had there been more specific data it might have had greater sympathy, possibly with a variation of the timing of the amounts that H had to pay (but probably not with the overall terms of the order itself).
Can we take any general principles from the decision?
What is clear from the judgment is that a court will look for specific factual evidence of a long-term effect before it is going to be willing to look at making any changes to an order. The bar is set high and even if there has been a temporary downturn, that doesn’t mean that the original order will be changed – although it might mean that further time will be given to pay what is due.
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