Amending a divorce settlement due to a change in health

Can I amend our divorce settlement due to a chronic health condition?

During a divorce or dissolution of a civil partnership, there are a number of factors that must be taken into account when dividing the matrimonial assets. Included within these factors are any physical or mental disability of either spouse or civil partner and what their current and future financial needs will be. This provides scope to make a fair and just settlement for anyone that may be suffering a chronic health condition – a long term illness which is likely to significantly impact a person’s function, earning capacity and future financial needs.

What happens if you had agreed a settlement and have been subsequently diagnosed with a chronic health condition which significantly affects your earning capacity?

When it comes to divorce or dissolution settlements, a chronic health condition can have a significant impact on the financial division of assets. If your diagnosis was after a settlement has already been reached, then it may be possible, in very limited circumstances, to have your settlement reopened to ensure that your financial needs are met. This is not a simple process and it will require urgent and early legal intervention if it is to have a chance of success.

Can divorce settlements be reopened?

In some circumstances, provision may have been included within a divorce settlement for a maintenance order or nominal maintenance order. In these situations, it may be possible to seek a variation to the order, if the chronic health condition has had a significant impact to your income.

In most circumstances, divorce settlements are binding as a full and final settlement on a clean break basis which cannot be reopened.

It requires very exceptional circumstances for the courts to contemplate reopening a settlement, but under certain circumstances it will be possible.

These include:

If there was significant fraud or misrepresentation by one of the partners, such that the other has been deceived during the settlement process. For example, if one partner has provided fraudulent financial information.
If there was a material non-disclosure, where one partner failed to share important information which would reasonably have been expected to have impacted the settlement, such as owning significant assets.
An unforeseen change in circumstance, sometimes known as a ‘Barder’ event. This is the category that could include an unforeseen diagnosis of a chronic health condition which will significantly impact one partner’s financial position.

What is a Barder event?

A Barder event is named after the tragic case of Barder v Barder. A consent order had been made stipulating that the husband would transfer his interest in the family home to his wife, intending that the wife and two children of the family would reside there. Just five weeks later, the wife tragically killed her two children before committing suicide. Her estate was left to her mother in her will. The husband, feeling this was unfair, tried to get the consent order varied by way of an appeal.

The House of Lords agreed to the husband’s appeal, and significantly changed the existing consent order to benefit the husband.

The judge set out the four conditions for when a ‘Barder’ event can occur, allowing a divorce settlement to be reopened:

that the new event invalidated the basis or fundamental assumptions upon which the original order or settlement was made;
that the new event had occurred within a short period of time after the settlement was made (while no time is stipulated, this is likely to be a number of weeks or a few months at most);
the application should be brought back to court promptly; and
that third parties who have acquired, in good faith for valuable consideration, interests in property which may be impacted should not be prejudiced.

What changes could I obtain?

If your circumstances meet these strict criteria then you can have your settlement reconsidered in light of your new health condition.

It will be necessary for medical reports to be obtained to show when you were diagnosed; the likely future prognosis for you; and how this will impact your functioning and earning capacity. Consideration will also need to be given to any requirements for care assistance both now and in the future, and any adaptations that will be needed to your home.

How we can help

If you are in the unfortunate situation of having had a life changing diagnosis of chronic illness shortly after your divorce or dissolution settlement, while your health and wellbeing are most likely your primary concern, it is vital that you obtain early legal advice on your options. Delay in acting can be reason alone for your claim to fail.

Reopening a settlement is not something that a court will do lightly. One of our family law experts will be able to advise you on the options available to you.

Amanda Erskine is a solicitor at Barker Gotelee Solicitors in Suffolk.

Suffolk Divorce Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email [email protected]