Setting aside an order is different from appealing against an order.

With an appeal you are saying that the decision of a judge was:

• The wrong decision according to the law or the facts; or,
• That it was unjust because of a serious procedural problem.

When you try to set aside a consent order you are saying that is should be set aside because of:

• Duress or undue influence;
• Mistake; or,
• Something exceptional that happened after the order.

Successful applications to set aside an order are rare.  This is because the whole aim of the process is to bring arguments about marriages to an end.

Non-disclosure

If you want a court to set aside an earlier order because of non-disclosure you are going to need some pretty compelling evidence.

It will not be enough to re-hash the same arguments you put forward at the time of an earlier hearing.  In all likelihood you will need some solid new evidence.  A good example might be in a case where one side said they had no intention of selling a company, then not long after the hearing the company announces it is going to be sold and says it has been in talks with possible buyers for some time: Sharland v Sharland [2015] UKSC 60.

The court's approach to non-disclosure will depend upon whether the non-disclosure was innocent or fraudulent.  If it is fraudulent there is a better chance of having the consent order set aside.

On the other hand if the non-disclosure was "innocent" you will need to show that the non-disclosure was “material”.  In other words you will have to show that if the true position had been known the court would have made an order which was substantially different from the order which was made.  So in other words, if the innocent non-disclosure would not have made a great deal of difference, it will not be a reason for setting aside the order.

Fraud

If a consent order has been achieved by fraud on the part of one of the parties it will be easier for it to be set aside. 

Even if you could show fraud however, delay in bringing the matter back to court might prevent the court from setting aside the original order.

Duress or undue influence

If a party was “coerced” into agreeing to a consent order or if the other party exerted “undue influence” on them to get them to agree to the order, this could be a ground for setting aside.

Mistake

It might be a ground for setting aside a consent order that one of the assets was very significantly undervalued.  Alternatively it might be that a debt was significantly underestimated.  If the change in value happened after trial however, the court will be much less likely to set aside the order: see e.g. Myerson v Myerson [2009] EWCA Civ 282.  It also makes it more difficult to set aside under this heading if the parties could have discovered the true position if they had been diligent at the time (see below).

Something exceptional that happened after the order

This is known by lawyers as a “Barder” application.  It is named after the case of Barder v Barder [1988] AC 20.  In that case a final order was made in relation to the parties’ finances.  5 weeks later, the Wife committed suicide.  An appeal in relation to the original order was allowed.

Later cases have shown that for a party to successfully appeal/set aside an order on this basis the court will need to be satisfied:

• That the new events relied upon invalidated the fundamental assumption on which the order was made so that, if leave were given, the appeal would be certain or very likely to succeed
• The new event happens soon after the order.The suggestion in the case itself was that it would need to be within 1 year of the order;
• The person appealing does not delay in applying to appeal/set aside;
• No innocent parties are prejudiced; and,
• The change could not reasonably have been foreseen.