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Consent order can be challenged by application to set aside or appeal

PD 30A, para 14.1 is ultra vires

The President has declared that para 14.1 of PD30A, which provides that a consent order can be challenged only by an appeal, was made ultra vires.

The issue arose in CS v ACS and Another [2015] EWHC 1005, in which a wife applied to set aside part of a consent order disposing of ancillary relief proceedings and sought to substitute a nominal maintenance order with one of substantive maintenance on the basis that her husband had failed to provide full and frank disclosure.

Section 31F(6) of the Matrimonial and Family Proceedings Act 1984  provides that the family court has power to vary, suspend, rescind or revive any order made by it, including (a) power to rescind an order and re-list the application on which it was made.  Rule 4.1(6) of the Family Procedure Rules 2010 provides that a power of the court under the rules to make an order includes a power to vary or revoke the order.

However, it was argued for the husband, relying on PD 30A, that the wife's only remedy was to appeal.

The practical importance of the technical argument is that while permission is required to pursue an appeal, permission is not a pre-requisite to an application to set aside.

Sir James Munby, reviewing the statutory authorities and recent caselaw, stated that there was a conflict between, on the one hand, the statute and the rule and, on the other, the practice direction. He concluded that this required the latter to yield to the former.

Deprecating the complexity of the law in this area, the President said:

'It is profoundly unsatisfactory that the courts should still have to take up so much of their time and their litigants' resources dealing with such matters. The final Report of the Financial Remedies Working Group, 15 December 2014, expressed the view (para 13) that "clarification of the procedures for re-opening first instance orders in financial remedy proceedings is required" and said that it "would strongly support amendments to the Family Procedure Rules for that purpose." I doubt that anyone could possibly disagree. Remedial 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. I add only this. The Working Party may wish to consider the extent to which these problems are capable of solution by either Rule or Practice Direction. It may be that primary legislation is required.'