In England, a family court decision can be challenged by appealing to a court that is more senior than the court in which your case was decided. An appeal cannot be made simply because the outcome is unfavourable, there must be valid legal grounds such as procedural errors or misinterpretation of the law. An appeal is not a retrial; it focuses on whether the lower court made legal errors that impacted the judgment.
In most cases you will need to obtain permission to appeal. This can be granted by the judge who made the original decision or by the appeal court. Permission is only given if the court considers that the appeal has a real prospect of success or there is some other compelling reason for the appeal to be heard.
You can only appeal a decision if there are legal grounds to do so. Valid grounds include: -
- The judge made a significant error in law
- The Judge misunderstood or failed to consider evidence
- There was a serious procedural irregularity (e.g. not being given a fair chance to present your case)
- The decision was plainly wrong – i.e. one that no reasonable judge could have made.
As a general rule, new evidence that was not presented at the original trial cannot be introduced on appeal. If important evidence was not put before the court at that stage, it will usually not be possible to remedy that omission during the appeal process. However, there are limited exceptions, and in rare cases the court may allow new evidence to be considered where the strict legal criteria for admission are met.
Costs in family appeals can be significant and should be carefully considered. If an appeal is unsuccessful and deemed to be without merit, the court will likely order the appellant to pay the other party’s legal costs. If the appeal is successful, the court may instead order the other side to contribute towards costs, although recovery is discretionary and rarely covers the full amount incurred.
To appeal a family court decision, the application must be filed within the relevant time limit. This varies depending on the type of order and the level of court involved. In some cases, the judge will specify the deadline for any appeal. If not, the standard time limit is 21 days, which also applies to appeals to the Court of Appeal. However, for certain matters such as case management decisions or interim care orders, the time limit is usually shorter, typically 7 days from the date of the decision.
A final court order in financial remedy proceedings can be set aside (or overturned) in specific circumstances, including:
1. Fraud or fraudulent non-disclosure: if one party lied, concealed assets or misrepresented their financial situation, the court made set aside the financial order.
In the case of Sharland v Sharland [2015] UKSC 60, the wife succeeded in having a consent order set aside because the husband had lied about a potential business sale, the effect of which was that the value of his wealth had been underplayed and the wife was entitled to a larger award.
In Gohil v Gohil [2015] UKSC 61, the husband failed to disclose significant assets, including millions in offshore accounts, leading to the order being overturned as a result of the material non-disclosure, and the wife receiving a larger award.
In James Morgan Copinger-Symes v Maria-Christina Copinger-Symes & Anor [2024] EWFC 415 the order was set aside due to material non-disclosure. The court found that the husband’s failure to disclose that he was likely to receive a substantial gift (£27.6m) from his wife’s parents fundamentally altered the case.
2. Non-disclosure: the court will be more inclined to set aside an order where a party has deliberately and fraudulently failed to make property disclosure. However, non-disclosure that was negligent or inadvertent may also lead to an order being set aside if the court would have made a substantially different order had it been aware of the true facts.
3. Barder event: should a new event occur shortly after an order is made which fundamentally undermines the original order, there is the possibility that it could be successfully challenged and set aside.
An application for a set aside based on the occurrence of a “Barder” event must be made promptly if it is to stand a good chance of success and success will only then be dependent on no third-party rights being prejudiced, e.g. prejudice to someone who has acquired, in good faith and for valuable consideration, an interest in property which is the subject matter of the order.
4. Mistake: If there was a mistake at the time a financial remedy order was made, this may enable a party to challenge the order and ask the court to set it aside. The court would need to be satisfied that, were it not for the mistake, a substantially different order would have been made.
The courts generally take a restricted approach Barder events. In order to use a Barder event, the event must be “unforeseen and unforeseeable.” By way of example, an ex-spouse who loses their job will be unlikely to reduce their payment obligations to their former spouse by getting the order set aside. Similarly, the fluctuation in value of property assets or investments is unlikely to be sufficient.
Some previous examples where cases have been set aside due to new unforeseeable events include:
- Unexpected inheritance received shortly after the divorce settlement, which significant changed the financial landscape.
- The death of a spouse shortly after settlement.
- Remarriage or cohabitation where it was concealed.
