APPLICATION TO SET ASIDE A FAMILY PROCEEDINGS ORDER a procedural guide

Some preliminary thoughts in the form of a rough procedural guide on setting aside a financial order in family proceedings after

  • Sharland v Sharland [2015] UKSC 60 (14 October 2015); and
  • Gohil v Gohil [2015] UKSC 61 (14 October 2015)

(1)        Money proceedings

     
Who may apply Either party to ancillary relief order, whether it was made (1) by consent or (2) following a court hearing Most of this jurisdiction is based on common law principles: in the medieval pleadings forms family proceedings is reduced to there is no obvious way in which a set aside application should be pleaded. CPR 1998 principles apply by analogy
The application The application is to set aside a court order so that – as far as possible, given the passage of time – the position reverts to the way it was prior to the order being made Matrimonial and Family Proceedings Act 1984 s 31F(6); ‘at level the order was made’: Sharland v Sharland [2015] UKSC 60 at §41; Gohil v Gohil [2015] UKSC 61 §18(c) (recommended course)

Note comment on what to revert to of Lady Hale in Sharland at §43

Form of application Application notice in existing cause/case FPR 2010 Part 18
When to apply As soon as possible after the grounds for application (see below) come to light For delay of seven years see . The greater or more sure is the materiality (see grounds) the greater is likely to be the tolerance of delay
Grounds Summarised the grounds are:

(1) Non-disclosure: which is material and which is (i) accidental or negligent (applicant to prove materiality); or (ii) fraudulent (materiality presumed)

(2) Mistake by the court as to law or fact

(3) Unlawfulness (eg the order was made without jurisdiction)

(4) Procedural irregularity

Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813

Gohil (above) esp §44

Pleading the Part 18 application (1) Plead on or more of the grounds (above)

(2) As ever, plead facts: evidence will follow

(3) If non-disclosure state

(i) whether accidental etc, in which case say why material; or

(ii) fraud in which case bear in mind rules about pleading fraud: ie that evince thereof must be available to the pleader

(4) If other plead accordingly

Note follow Part 18 on the assumption that and early directions/case management appointment before the level of judge who will try the application

Case management Particular matters:

(1) Disclosure and production – this may be critical; and depending on what turns up (or still does not turn up) pleading may need to be amended

(2) Transcript of original hearing: needed?

(3) Marshalling of evidence: what evidence to be heard live and what on paper or on submissions only

(4) Bundle from court below: how much needed?

Note: any HRA 1998 issues on a fair trial; must be pleaded and Government Legal Department joined (see PG##)

(1) Common law: treat CPR 1998 Part 31 as representing the common law; apply to amend per CPR 1998
Legal services order If periodical payments still live: seek LSO (see PG##)

If periodical payments disposed of on the order under review, seek A v A order interim to the issue before the court

Note the court may refuse to deal with this till the set aside issue is resolved

Matrimonial Causes Act 1973 s 22ZA(1)

A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 FLR 377 and powers to make interim orders MFPA 1984 s 31F(2)(b)

Hearing, form of Fraud may have to be the subject of a full viva voce hearing; many other hearing may be based on submissions only
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3 thoughts on “APPLICATION TO SET ASIDE A FAMILY PROCEEDINGS ORDER a procedural guide

  1. Pingback: NON-DISCLOSURE AND FRAUD, BUT ONLY ON CREDIBLE EVIDENCE | dbfamilylaw

  2. Pingback: BURN FAMILY PROCEDURE RULES 2010 | dbfamilylaw

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