Setting aside a final financial order is one of the most serious steps the Family Court can take. It disrupts finality, unravels what the parties thought was settled, and reopens litigation that may have been dormant for years. Because of this, the bar for reopening a case is high — but not insurmountable, particularly where there is fraudulent non-disclosure.
The recent decision in Silberschmidt v Richards addresses a question that regularly troubles practitioners: If a spouse discovers fraud years after the final order, but waits before issuing their application, can delay alone defeat an otherwise meritorious claim?
The answer from the High Court: Yes — in theory. But only where the delay makes a fair trial impossible. And on the facts of this case, the appeal against reopening the order was dismissed.
The Background: Fraudulent Non-Disclosure at the Heart
The wife applied to set aside a consent order years after it had been made, arguing that the husband had suppressed key financial information during the original proceedings. The judge at first instance accepted that her application had merit and that there was a real prospect that the husband had fraudulently failed to disclose significant assets.
The husband appealed, but not on the fraud issue. Instead, he argued:
- The wife waited too long to bring the application once she suspected wrongdoing;
- This delay meant the court should not have reopened the final order; and
- The judge had not properly addressed whether the delay was, in itself, fatal.
This made the case a perfect vehicle for clarifying the law on delay in fraudulent non-disclosure set-aside claims.
Fraud Still Trumps Finality — But Only If a Fair Trial Is Possible
Mr Justice Poole, dismissing the appeal, reaffirmed the classic starting point:
- Fraud “unravels all” — but not at any cost.
- Delay may defeat a set-aside application, but only where it renders the litigation unfair or the evidence impossible to evaluate.
The High Court emphasised three guiding principles:
- The Court Must Balance Finality Against Justice
Finality is important, but it cannot be used as a shield for a spouse who deliberately misled the court.
- Delay Is Not Determinative Unless It Causes Irredeemable Prejudice
The key question is prejudice, not simply the passage of time.
The court looks at:
- Has evidence been lost?
- Are witnesses no longer available?
- Has the factual landscape changed so much that truth can no longer be established?
- Would the fraudster suffer unfairness if the matter is reopened?
- A Meritorious Claim Should Not Be Shut Out Without Good Reason
Even if delay is long, the court will not bar a claim where:
- the fraud can still be fairly investigated;
- the spouse did not reasonably discover the fraud earlier;
- the alleged wrongdoer caused or contributed to the delay;
- the integrity of the original order is fundamentally compromised.
In Silberschmidt v Richards, despite the gap in time, none of the husband’s alleged prejudice was enough to prevent a fair hearing. The wife’s application was therefore properly allowed to proceed.
Why the Appeal Failed
The High Court held that the judge at first instance had:
- applied the correct legal test,
- acknowledged the delay,
- weighed it appropriately within the overall justice of the case, and
- concluded (rightly) that a fair investigation was still possible.
In other words, the husband could not convert his own alleged fraudulent non-disclosure into a procedural shield.
Why This Case Matters
This appeal provides valuable clarity for lawyers and clients alike:
- Delay can be fatal — but it usually won’t be.
Only where delay makes a fair trial impossible will the court refuse to reopen a consent order tainted by fraud.
- Fraud remains the highest-ranking threat to finality.
The overriding objective remains doing justice, not preserving an order built on deceit.
- Applicants must act promptly once they have evidence.
A meritorious application will not automatically succeed if a party sleeps on their rights.
- Respondents cannot rely on delay they contributed to.
A spouse who has hidden assets cannot complain when the truth eventually emerges.
Closing Thoughts
Silberschmidt v Richards reinforces a simple but crucial principle:
Final orders matter — but honesty matters more.
Where fraud is alleged, the court will look carefully at whether the truth can still be uncovered. If it can, delay will rarely be decisive. For anyone facing the discovery of non-disclosure years after the ink has dried on a consent order, this decision offers clarity — and a fair chance to put things right.
