Applying to set aside a financial order

Financial orders made during divorce proceedings are usually final. However, in rare and specific circumstances, it may be possible to set aside a financial order - effectively undoing it.

This guide explains when and how you can apply to set aside a financial order, what the courts consider, and how to protect your position.

What Does “Setting Aside” a Financial Order Mean?

To set aside a financial order means to cancel or nullify it, as if it had never been made. This is different from appealing an order or applying to vary it. Setting aside is only available in exceptional cases where something fundamental undermines the original decision.

Grounds for Setting Aside a Financial Order

In determining whether there are grounds for a financial order to be set aside, judges have discretion, but the typical and accepted grounds to set aside an order (set out at paragraph 13.5 of Practice Direction 9A of the FPR) include: 

• Non-disclosure: One party failed to disclose key financial information (e.g. hidden assets).

• Mistake: A material error affected the outcome.

• Barder events: A significant, unforeseen event occurs shortly after the order, radically altering the fairness of the outcome (e.g. death, serious illness, or financial collapse).

• Fraud or misrepresentation: Deliberate deception influenced the court’s decision.

   

Notably, receiving poor legal advice does not constitute a ground to set aside an order.

When Should You Apply?

Timing is critical. Courts expect applications to be made promptly after discovering the issue. In Barder cases, the application must usually be made within a few months of the event.

Appeal vs. Set Aside: What’s the Difference?

Generally, an application to set aside a financial order should only be made in circumstances where an error of the court is not alleged. Where an error of the court is alleged, parties should usually apply for permission to appeal instead. 

• Appeal: Used when you believe the court made a legal or procedural error.
• Set aside: Used when new facts or misconduct come to light after the order was made.

It may be more appropriate to appeal an order rather than apply for it to be set aside if: 

• The applicant alleges both that the court made a mistake and that a ground for setting aside exists; or 

• The order involves a pension sharing order and the court may be asked to consider making orders under section 40A(5) or 40B(2)(b) of the Matrimonial Causes Act 1973 (namely, where the pension sharing order or pension compensation sharing order has already taken effect).

If you’re unsure which route to take, consult a specialist solicitor.

If you are unhappy with your financial settlement and believe it should be varied or set aside, contact Vardags today for a free initial consultation with one of our expert divorce solicitors. 

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