We are regularly asked whether a Consent Order (which is a court order that couples voluntarily agreed to) can be challenged. Clearly it’s a contradiction in terms – because you want to appeal an agreement, which you yourself signed up to in the first place!
However; there can be many reasons why you may want to challenge a Consent Order. Most often, it is because you find out after signing the agreement that you were misled by your spouse, or perhaps even that circumstances have changed so drastically that you cannot possibly now go through with that Consent Order.
How Do You Challenge a Financial Consent Order?
Consent Orders and other financial settlement orders made in family proceedings are designed to be final. For this reason judges are very wary of allowing any challenges against them on appeal. However; this is not to say that Consent Orders cannot be challenged. They can be challenged and sometimes even years after they were entered into.
I have had countless enquiries over the years as to whether a client has a good case to re-open a Consent order or final financial order. Although those with a chance are relatively few, I have personally conducted many such applications and, successfully. However; that doesn’t mean I can win any case – it needs to be one which fits into the very specific law on this topic.Cyrus Mansouri
What does the Law say?
In order to challenge a Consent Order, we need to attack the basis upon which the Consent Order has been made. A successful challenge will be one that ticks at least one of the following four reasons:
- Non-disclosure of relevant facts
- Fraud & Misrepresentation
- Supervising events & significant change in circumstance; or
- Undue influence
I have dealt with each of these separately and by clicking the highlighted links, you can start to get into the details of each category and see whether it fits your own circumstances. If you think it does, then perhaps it’s worth contacting us for more specific advice.
In addition to proving one of the above four grounds – there are also some other issues that a court will look at when deciding on an application to set aside a Consent Order. The additional considerations are:
A delay in making an application to set aside or appeal against a Consent Order can result in failure. These types of applications must be made promptly, which means ‘as soon as you become aware of the facts’. Some websites will tell you that it must be done inside a year, but I have personally successfully set aside Consent Orders several years after they were sealed. But it is safe to say that as soon as you become aware of potential reasons to challenge your Consent Order, you need to act fast.
The court does not have power to vary a lump sum Order once it has been ordered. Only in cases where the lump sum is payable by instalments might an application be made to vary those instalments.
Not all cases that tick one of the four reasons (listed above) will succeed. This is because, when challenging a Consent Order, you also need to convince the court that the new information / or event, which you rely on, would have made a material difference, had it been known before the consent order was sealed. So if the benefit to you is just too small to make much difference, the court would refuse your application to set aside the Consent Order. So the new information needs to be important enough to have made a real difference, had the court known about it before!
- SET ASIDE OR APPEAL?
Now this is a huge area in itself. Do you apply to appeal a Consent Order, or do you apply to have it ‘set aside’? Well to you it might mean the same thing, but in law, it is two completely different ways of going about it; and, get it wrong and you could lose just on this technicality.
Generally speaking, if you challenge the Consent Order because you say the court made a mistake, you should be appealing it. You will need to apply for the court’s permission to appeal after the time limit to appeal has expired. This is called “applying for leave to appeal out of time”. Normally you have 21 days from the date that the judge makes the order.
For other types of events you would normally apply to set aside the Consent Order by way of what’s called a FPR Part 18 Application. You will need a solicitor to do this for you, so don’t panic about the technicalities, just get yourself some good, solid, advice!
If you have a question about Consent Orders or anything else related to Divorce you can contact us
See a recent Barder case and how the rules were applied