The President of the Family Division has ruled that PD 30A 14.1 of the Family Procedure Rules – which states that consent orders in financial provision proceedings can only be challenged by way of appeal – was ultra vires. It is therefore a nullity and leaves in place the power of the family court to “vary, suspend, rescind or revive any order made by it” (as provided by s.31F(6) of the Matrimonial and Family Proceedings Act 1984, as inserted by the Crimes and Courts Act 2013). This will include applications to set aside consent orders, whether made on the basis of Barder arguments or not.
This is an important decision given the frequency with which the issue arises. The author has been involved in at least 2 cases this year where the court has applied rule 14.1 and dismissed applications to set aside consent orders at the first hearing.
The vital importance of the decision lies in the difference between an appeal and an application to set aside. In bringing an appeal, a litigant must first obtain permission and consideration will be given to any delay beyond the normal appeal time limit. Conversely, an application to set aside does not require permission.
However, this may not be the end of the story. The President described this area of law as particularly complex and inviting of long-overdue reform. He stated that “[r]emedial work is now a matter of pressing urgency, unless we are complacently to condemn another generation of litigants to a procedural maze which is a discredit to family justice.” He invites the Financial Remedies Working Group to look at the issue.