The answer is, it depends.
In the recent case of Silberschmidt v Richards 2025 the High Court concluded that:
“An applicant seeking to set aside a financial remedy consent order on the ground of fraudulent non-disclosure ‘must act with reasonable promptness in making the application’. The court must determine whether a lack of reasonable promptness should defeat the application.
- In its assessment of whether an applicant has acted with reasonable promptness, the Court must consider all the relevant facts and circumstances in the case.
- The relevant facts and circumstances include a consideration of subjective and objective factors, which include:
- the nature, extent and effect of the fraudulent conduct;
- consideration of what information was available to the applicant (what they knew or could have known with reasonable diligence);
- the period of delay; and
- the impact of delay on the other party, on the fairness of any hearing of the application, and on the administration of justice.
- The relevant facts and circumstances include those over the whole relevant period before and after information came to light.”
Any application to set aside an Order on the grounds of fraud/fraudulent non-disclosure must be made quickly. Failure to do so is a ground to defeat the application, whether fraud is proved or not. This ground may prove a useful argument when seeking to defend applications to set aside on this ground.
In any event, even if fraud is made out, it is not conclusive that the Order should be set aside. Whilst it may be expected in many cases, the Court has previously identified circumstances in which the Order could, notwithstanding fraud/fraudulent non-disclosure being made out, remain as drafted and be enforced. The fraud/fraudulent non-disclosure may be immaterial if the Court is satisfied that it would not have made a “significantly different order”. In that event, the offender of the fraud carries the burden, on the balance of probabilities, of proving it would not have made any material difference. How that burden is discharged will vary from case to case but primary evidence of the value of the assets at the time and application of the criteria under S25 Matrimonial Causes Act 1973 in retrospect may be sufficient.
It is unlikely a Court will simply take the person who caused the fraud’s submissions about the value of the assets on face value (given their reliability) without evaluating any primary evidence of the same.
The applicant, whilst not subject to the burden of proof to show the fraud would have made a material difference, should still adduce evidence showing the fraud was material. That inevitably makes the Defendant’s job of proving it would not have made a material difference much more difficult.
It is important to note that these types of applications often attract significant costs, and it is highly likely the unsuccessful party will be responsible for some, or all, of the other’s costs. Strategic discussions are therefore essential to ensure costs are incurred proportionately and consideration given to whether negotiations to settle the case would be more cost effective.
Whilst these types of cases are relatively rare, they are often complex and, at times, are determined almost entirely by the credibility of the parties who are giving evidence about matters that usually took place years ago.
It is important therefore to instruct a solicitor to consider your position as soon as possible and evaluate the merits of the application and consider the likelihood of obtaining evidence that supports your case. It is equally important to explore less contentious ways of resolving the dispute such as ADR, arbitration, mediation or similar, particularly given the likely costs implications for the unsuccessful party.