S v S (Ancillary Relief: Consent Order): FD 4 Mar 2002

An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and appealed refusal to allow this.
Held: The four tests in Barder still applied. A mistake of law was not a supervening event which would make a consent order void ab initio. A foreseeable event was not a supervening event. In this case there was neither the promptness, nor the evidence that the change was so significant as to make it necessary to set aside the consent order. ‘It is my opinion that the House of Lords decision is specific to the law of restitution and was not intended to apply across the board of every branch of Law’ and ‘mistake of law as a vitiating factor ab initio has no place in consent orders for ancillary relief. In any event there would be public policy considerations against setting aside a consent order on such a basis by reason of the floodgates opening for all the orders made in the last quarter of a century or more. The principle that there should be an end to litigation must prevail.’
Bracewell J said: ‘The authorities cited before me demonstrate that the grounds for setting aside a consent order fall into two categories. (1) cases in which it is alleged there was at the date of the order an erroneous basis of fact eg misrepresentations or misunderstanding as to the position or assets. (2) cases in which there has been a material or unforeseen change in circumstances after the order so as to undermine or invalidate the basis of the consent order, as in Barder v Barder [1988] AC 20, and known as a supervening event.
In many of the decided authorities, contractual terms such as ‘fraud’ and ‘misrepresentation’ are used, but it is important to remember that court orders for financial provisions in matrimonial proceedings derive their authority not from the agreement of the parties but from the approval of the court and the resulting consent order: see Jenkins v Livesey [1985] AC 424 and Xydhias v Xydhias [1999] 2 All ER 386.’

Mrs Justice Bracewell
Gazette 11-Apr-2002, [2002] 3 WLR 1372, [2003] Fam 1, [2002] 1 FLR 992, [2002] IDS Pensions Law Reports 219
England and Wales
ApprovedBarder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
DistinguishedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedJenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
CitedXydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .

Cited by:
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The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
ApprovedRam, Regina (on the Application Of) v Parole Board Admn 12-Jan-2004
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CitedWilliams v Thompson Leatherdale (A Firm) and Another QBD 10-Nov-2008
The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on . .
CitedCommunity Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
CitedRapisarda v Colladon (Irregular Divorces) FC 30-Sep-2014
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Family, Litigation Practice

Updated: 02 January 2022; Ref: scu.170041