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If you would like to discuss financial orders in more detail, please get in touch with the Myerson Family team.
What is a set aside application?
Whilst financial orders in family law are intended to be final, an application to set aside a financial order can be considered in certain circumstances. These cases are referred to as set aside applications.
The set aside application can only be made where no court error is alleged. If an error of the court is alleged on the basis that the decision was wrong on the facts and the law, an application for permission to appeal should be considered instead.
Common circumstances for an application to be set aside:
- If there has been fraud or mistake
- If there has been material non-disclosure
- If the order was made in the absence of consent or capacity
- If there has been undue influence
- If there has been a new event which was unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made (otherwise known as a barder event)
What is a barder event?
Examples of barder events may include the following:
- The death of a party
- Remarriage or formation of a subsequent civil partnership where at the time of making the order itself, a settled intention to remarry was fraudulently concealed
- An inheritance or substantial windfall
- A change in the law, if not foreseeable
Barder events do not generally include the following:
- General misfortune, including unemployment
- Significant changes in asset values due to the natural process of price fluctuation
How to apply
The set aside application is made to the court that made the original order and is made within the proceedings in which the financial remedy order was made. The application is dealt with by the same level of judge that dealt with the original application and, where possible, by the same judge.
The starting point is that the order that 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 rehear the original application for a financial remedy.
Where the court sets aside a financial remedy order, it must give directions for the rehearing of the financial remedy proceedings or make other orders, as may be appropriate, to dispose of the application.