Setting aside financial orders including Barder events where no error of the court alleged
Produced in partnership with David Salter Joint National Head of Family Law, Mills & Reeve LLP, Deputy High Court Judge and Recorder of Mills & Reeve
Setting aside financial orders including Barder events where no error of the court alleged

The following Family guidance note Produced in partnership with David Salter Joint National Head of Family Law, Mills & Reeve LLP, Deputy High Court Judge and Recorder of Mills & Reeve provides comprehensive and up to date legal information covering:

  • Setting aside financial orders including Barder events where no error of the court alleged
  • Background
  • Scope of FPR 2010, 9.9A
  • Grounds for an application to set aside where the court has made no error
  • Fraud
  • Material non-disclosure
  • Mistake
  • 'Barder events'
  • Lack of capacity
  • Executory orders
  • more

Background

For a considerable time there had been doubt and confusion as to the available routes of challenging a financial order (whether or not made by consent) where no error of the court is alleged. This was recognised by the Supreme Court in Gohil v Gohil, where it was observed that an appeal was inappropriate for an inquiry into disputed issues of non-disclosure in proceedings to set aside a financial order.

The procedural quagmire was finally resolved by the Family Procedure (Amendment No 2) Rules 2016, SI 2016/901 which inserted Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 9.9A with effect from 3 October 2016 providing for applications to set aside a financial remedy order.

Scope of FPR 2010, 9.9A

The following should be noted in relation to FPR 2010, SI 2010/2955, 9.9A:

  1. it only applies to applications in the High Court or the Family Court to set aside all or only part of a financial remedy order (including a consent order)

  2. the power to set aside only exists where no error of the court is alleged—if an error of the court is alleged (ie the decision was wrong on the facts and/or the law), an application for permission to appeal under FPR 2010, SI 2010/2955, Pt 30 should be considered, see Practice Note: Appeals—general principles, practice and procedure