There are very limited circumstances in which a financial order can be set aside. The power to set aside an order only exists where no error of the court is alleged. In those cases where an error of the court is alleged then an application for permission to appeal should be considered.
The application must be made to the same level of judge that made the original order (except where the order was made before 22.04.2014). The court must be satisfied that the Order which one party is seeking to have set aside was properly made and only once the ground for setting aside the order has been established (or admitted) can the court set aside the order and remit the matter for the original application to be the subject of a rehearing.
The most common circumstances forming the subject of an application to set aside a financial order are:
- Fraud
Wrongful or criminal deception intended to result in a financial or personal gain.
- Material non-disclosure
Both parties are under a duty to provide full and frank financial disclosure to each other, whether as part of contested proceedings or negotiations leading up to a consent order. Material non-disclosure may take a number of forms: fraudulent, negligent or inadvertent. The non-disclosure must, however, be material to the facts.
- Limited types of mistake
The court may set aside an order on the ground that the true facts on which it based its disposition were not known by either of the parties or the Court at the time the order was made.
- A party’s lack of capacity
A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
- A subsequent unforeseen and unforeseeable event (a ‘Barder event’)
The case of Barder v Barder sets out the conditions to be satisfied in order to justify an application for what was then “permission to appeal out of time”, primarily that:
- New events (both unforeseen and unforeseeable) have occurred since the making of the order that invalidates the basis on which the order was made.
- The new event has occurred within a relatively short time after the order (unlikely to be as much as a year and in most cases no more than a few months)
‘Barder events’ may include:
- The death of a party, particularly where an award was based on the deceased’s needs.
- Remarriage or formation of a subsequent civil partnership, particularly where a settled intention to remarry was fraudulently concealed from the other party and the court.
- An inheritance may amount to a Barder event although case law suggests this is rare.
- A change in the parties’ housing needs e.g. where the children’s living arrangements have changed.
Barder events generally do not include general misfortune including unemployment or significant changes in asset values due to natural price fluctuations.
Most attempts made to set aside orders on a Barder basis are unsuccessful and such applications can be costly.
If you need any advice or guidance regarding a matter similar to this, please do not hesitate to speak with our experienced team of family law solicitors in Exeter and the surrounding area.
