The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act.
Held: A final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
A final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
Munby J said: ‘There is an extensive jurisprudence analysing the means by which such applications can be brought before the court . . Much of this jurisprudence is both complex and, particularly where what is sought is to challenge a consent order made by a district judge, confusing and confused. It is, I venture to suggest, yet another area where there is a pressing need for legislative clarification and simplification. As Bracewell J pointed out in Benson v Benson (Deceased) [1996] 1 FLR 692, at 606, Ward J (as he then was) had commented as long as 1989 in B-T v B-T (Divorce: Procedure) [1990] 2 FLR 1 that the various procedures were unsatisfactory and cumbersome, yet, as she dryly observed, ‘the difficulties persist’. That was in 1995. In 2002 in S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1, [2002] 1 FLR 992, at para [11], the same judge observed that the law was in ‘a most unsatisfactory state’. It is now 2006 and little has been done, and nothing effective, to remedy matters.’
and . . ‘it suffices to say that where it is sought to challenge a consent order in ancillary relief proceedings it is, or may be, possible to do so by one or more of the following:
(i) a fresh action to set aside the consent order;
(ii) an appeal;
(iii) an application to the judge at first instance’.
Judges:
Munby J
Citations:
[2006] EWHC 956 (Fam), [2008] 1 FLR 26
Links:
Statutes:
Matrimonial Causes Act 1973 23(1)(a)
Jurisdiction:
England and Wales
Cited by:
Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.
Family, Litigation Practice
Updated: 02 September 2022; Ref: scu.263391