key takeaways
Have you recently obtained final property Orders and want to know if you can set them aside? Read below to find out more.
What are the grounds to set aside a property Order?
A final property Order can be set aside, other than by consent, in very limited circumstances. An application can be made to the Court to set aside the final property Orders in the following circumstances:
There has been a miscarriage of justice as a result of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance. For example, an Order might be set aside if a Court was satisfied that a party failed to disclose an inheritance that they received prior to the making of the final Order;
It is impracticable for the Order to be carried out due to circumstances which have arisen since the orders were made.
A party to the Orders has failed to comply with their obligations to an extent that is just and equitable to set aside the Order and make another order in substitution. For example, if one party failed to pay spousal maintenance as required by the Orders, the Court might make an Order setting aside the final property Orders and providing for the party who was to receive spousal maintenance to receive a higher percentage of the property pool.
If the Court is satisfied a child of the marriage or a party who has responsibility for caring for a child will suffer hardship if the Court does not vary or set aside the Order and make another order. The circumstances must be of an exceptional nature. For example, a change to the care arrangements for the children as a result of the death of one of the parties soon after the property orders had been made has been considered by the Court to be an exceptional circumstance.
If a proceeds of crime order has been made covering property of the parties to the marriage.
The Court will be reluctant to set aside a final property Order as one of the main Family Law Act 1975 (Cth) principles requires a final property Order to provide ‘finality’. This means a clean break of any financial connection between spouses. The Court will require substantial evidence before it will be satisfied that a final property Order should be set aside.
conclusion
If you think one of the above 5 situations might apply to you, then you may have a chance of being successful with this matter. However, as stated before, the Court will require substantial evidence to set your property Order aside. If you are considering making an application to the Court, we urge you to seek legal advice and guidance.
how we can help
The Family Law Team at McInnes Wilson Lawyers can provide you with advice on whether you have grounds to set aside a final property Order. We can ensure your Application under s 79A is carefully drafted and supported with sufficient evidence to give you the best prospects.
The Family Law Team can also assist if you are currently negotiating final property Orders with your ex. We can provide you with advice about what you are entitled to receive in the property settlement so you are fully informed before you agree to enter into a Consent Order. It can be very difficult to set aside a Consent Order if you later regret it.
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