What is a set aside application in financial remedy proceedings?

Setting aside a financial remedy order is one of the most technical applications in family law. It is only available in limited circumstances, the procedure is exacting and the consequences of getting it wrong can be significant. But where a genuine ground exists, set aside can reopen what otherwise appeared to be a final settlement.

This guide explains when a financial remedy order can be set aside, what grounds apply, what evidence is needed and how the application process works.

What is a set aside application?

A set aside application asks the court to cancel or revoke a financial remedy order that has already been made. If granted, the order ceases to have effect, and the underlying financial issues become open for fresh consideration.

Set aside is different from variation. Variation changes the terms of an order going forward (typically applied to periodical payments). Set aside removes the order entirely as if it had never been made.

The grounds for setting aside a financial remedy order

The recognised grounds are limited and have been developed by case law, principally the leading authorities of Sharland v Sharland and Gohil v Gohil. The main grounds are:

Fraud

One party deliberately misled the court or the other party about a material matter, such as concealing assets or providing false income figures.

Material non-disclosure

One party failed to disclose something they were obliged to disclose, and the non-disclosure was material to the order made.

Mistake

A common mistake of fact between the parties about something fundamental to the basis on which the order was made.

Subsequent unforeseen events (Barder events)

A new event occurring shortly after the order, which invalidates the basis on which the order was made. The classic example is the death of one party shortly after the order, in circumstances that fundamentally undermine the assumptions in the settlement.

Procedural irregularity

The order was made without proper procedure, for example without proper notice or in circumstances where one party was deprived of a fair hearing.

The Barder test

For applications based on new events, the test from Barder v Caluori applies. The conditions are:

• A new event has occurred since the order, which invalidates its basis
• The new event occurred within a relatively short time of the order (typically months, not years)
• The application is made promptly after the new event
• The application does not prejudice third parties who have acquired rights in good faith

All four conditions must be satisfied. The Barder test is deliberately strict; the court does not want to revisit orders simply because circumstances have changed.

The procedural route

Where to apply

The application is usually made to the court that made the original order. For orders made in the Family Court, that means the same court (though typically a different judge).

The forms

For financial remedy set aside applications, you typically use Form D11 (the general family court application) accompanied by a witness statement and any supporting evidence.

The time limit

There is no fixed statutory time limit for most set aside applications, but delay is fatal. The court expects applications to be made promptly once the relevant matter is known. Significant delay without explanation is one of the most common reasons for set aside applications to fail.

The fee

A court fee is payable. The amount is set out in the family court fee schedule.

The evidence needed

The witness statement supporting a set aside application is the most important document. It must set out:

The factual background

A chronology of the marriage, separation, financial remedy proceedings and the order.

The grounds for set aside

The specific ground being relied on, with supporting facts and evidence.

Why the matter is material

Showing that the non-disclosure, fraud or new event makes a difference to the order. Set aside is not granted for technical or trivial reasons.

Explanation of any delay

Why the application was not made sooner. The court will scrutinise this closely.

What should happen if the order is set aside

What you propose should happen next. This usually means a re-hearing of the financial remedy issues, but the practical steps need to be considered.

The court's approach

The court is cautious about setting aside financial remedy orders. The starting point is the principle of finality: parties need to be able to rely on court orders to organise their finances. Set aside is reserved for cases where the integrity of the original process has been compromised.

That said, where the grounds are made out, the court will set aside the order. The leading cases on fraud and non-disclosure make clear that those who deceive the court should not be permitted to keep the benefit of the order they obtained.

The hearing

A contested set aside application is usually dealt with at a hearing. The court will consider:

• Whether the applicant has established the relevant ground
• The materiality of the matter relied on
• Any delay
• The effect on third parties
• Whether justice requires the order to be set aside

The hearing is usually listed for a half day or full day, depending on the complexity. If the application succeeds, the court will give directions for the rehearing.

Consequences if the application succeeds

If the order is set aside, the parties return to the position they were in before the order. The financial remedy issues become open for fresh consideration. This usually means a new round of disclosure and a fresh determination by the court.

Any property that has been transferred under the original order may need to be reversed. Any lump sum paid may need to be returned. The court can give specific directions about how the unwinding should be handled.

Consequences if the application fails

If the application is refused, the original order stands and is enforceable. The applicant may also face an adverse costs order, particularly if the application is found to have been weak or made without reasonable grounds.

Common reasons set aside applications fail

Delay

The most common reason. Applications brought years after the relevant event with no good explanation are usually refused.

Material that is not actually material

The court asks whether the non-disclosure or new event would have made a difference. If the answer is no, the application fails.

No supporting evidence

Bare allegations are not enough. The witness statement needs documentary evidence, third-party statements and other supporting material.

Wrong ground

Set aside is not the right remedy for every problem with an order. Some issues are better dealt with by variation, appeal or enforcement.

Third party rights

If property has been sold to a third party in good faith, set aside may not be granted because the third party's rights cannot be unwound.

Set aside versus appeal

Sometimes the right route is appeal, not set aside. Appeals are appropriate where the original judge made an error of law or fact. Set aside is for cases where the order was obtained on a flawed factual basis or new events have undermined it.

Where there is doubt, taking advice on the right route is essential. Pursuing the wrong remedy wastes time and costs.

When to take legal advice

Set aside applications are among the most technical applications in family law. The grounds are narrow, the procedural rules are exacting and the evidential burden is significant. For any set aside application, taking specialist barrister advice early is essential.

A direct access barrister with financial remedy experience can advise on whether you have a viable application, draft the supporting witness statement and represent you at the hearing.

Get clear advice from a specialist barrister

Many of the people we help have already done significant work on their case themselves. A direct access barrister can step in at any stage, from initial advice through to representation at a final hearing. Get in touch to discuss your options.