Can Property Orders be Changed or Overturned?

Can property orders be changed or overturned once it has been finalised by the Court?

When property orders have been finalised by the Court either by consent between parties or by judgment, the property orders are deemed to have finalised all financial relationships between the parties to the marriage or de-facto relationship.  This provides that neither party will have any further recourse to further proceedings between them.

There may be instances however, where following the finalisation of the property orders, the Court may vary the final property orders.  The variance of the final property orders can be made by way of application to the court or by consent between the parties.

What the Court will take into account to vary the property orders

In considering an application to vary final property orders, the Court must be satisfied that:

1. There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
2. In the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
3. A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
4. In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage or relationship, the child or, where the applicant has caring responsibility for the child, the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
5. A proceeds of crime order has been made covering property of the parties to the marriage or relationship or either of them, or a proceeds of crime order has been made against a party to the marriage or relationship.

Succeeding in having the Court vary the final property orders

Once final property orders have been made by the Court, it is very difficult to have them varied even when taking in account the list of factors mentioned above.

In past cases it has been held that the person making the application to vary the final property orders, or the parties consenting to the change must show some “circumstance leading to a miscarriage of justice” (Suiker & Suiker 1993 FLC) if the existing final property orders remain in place.

Variance of final property orders are often succeeded in cases where one party has failed to disclose materially relevant financial information which would have impacted in the property division had that information been presently known at the time.  An example would include the following:

A and B finalised their property settlement by consent and A received 50% of the total asset pool.  9 months later, A discovered that B had purchased a property 3 months before the property settlement was finalised with funds that A was not aware existed and were not disclosed. 

In a case such as this, A would have a good chance of having the original final property orders overturned on the basis that there was a failure to disclose relevant financial information which if known at the time, would have likely resulted in A receiving more of the total asset pool.

That being said, it is always important that prior to entering into final property orders by consent, to undertake in proper full and frank disclosure of not only your assets, but also your ex-partner’s assets, superannuation and financial resources. You should not rely on simply having the final property orders overturned if that information comes to your attention after the final orders have been made as it is a costly process and not always successful.

Property orders can also be likely overturned in circumstances where one party was coerced or forced into signing property orders by consent.  An example of this would include the following:

C and D separated and were negotiating a property settlement.  During negotiations, C makes threats of violence against D and tells him/her that they will not hurt them if they sign consent orders.  D signs the consent orders without undertaking in proper due diligence, or simply agreeing to the orders, due to the fear of violence.

In this case, D may be able to have the consent orders overturned on the basis of duress and coercion.

Summary

While there arise circumstances where final property orders can be overturned, the Court is required to finalise property orders on the basis that it will end the financial relationship of the parties.  Consequently, there is a reluctance of the Court to re-open a case once the matter has been finalised.

Evidence to support an application to the Court seeking a variance of final property orders should clearly set out the reasons why there would be a miscarriage of justice if the original final property orders remain in place.  It should also clearly set out why that information or circumstance that arose, would have resulted in a different division of assets had it been a material fact before the Court on the last occasion.

If you are considering an application to overturn final property orders or are concerned that your final property orders may be overturned, it is essential to obtain legal advice from a practitioner who specialises in Family Law, as it is a very complex area.

Our Family Lawyers are experienced and accredited specialists in Family Law.  We can provide expert and tailored advice relevant to your particular circumstance and advise you on the success of any application to vary a final property order and the success of defending against any such application by your ex-partner.

Jonathon Rago