Setting aside a consent order due to lack of capacity

In MAP v RAP [2013] EWHC 4784 (Fam), Mostyn J found that a lack of capacity could constitute a ground to set aside a consent order.

The judgment was the first of its kind, as lack of capacity had not previously featured as a ground for setting aside a consent order. 

The wife sought permission to appeal the consent order out of time on the basis that she lacked mental capacity at the time it was ‘agreed’, as she had been suffering from bipolar affective disorder. She had been representing herself at the time the consent order was entered into and the agreement on which the consent order had been based was made shortly before she was detained under the Mental Health Act. 

The consent order, it was said, provided the husband with approximately 80% of the assets, including a considerable portion derived from the wife’s inheritance from her mother. Additionally, the order provided for a ‘clean break’, meaning the wife was left with a modest pension and no entitlement to the husband’s future earnings or pension. 

Mostyn J expressed his surprise that no solicitor alerted the court to the wife’s mental capacity and found that her case that she lacked mental capacity was strongly arguable. However, rather than granting permission to appeal, he directed that the issue be heard at first instance (under rule 4.1(6) of the FPR, which grants the court power to vary or revoke an order).

This decision predates the introduction of FPR 9.9A and Practice Direction 9A. In the more recent case of BF v LE [2023] EWHC 2009, Lieven J noted that lack of capacity does not come within paragraph 13.5 of Practice Direction 9A. She held that a hearing which proceeds in circumstances where one party lacks capacity is an error of law and falls under the right of appeal, not the power to set aside.

If you believe you lacked capacity when agreeing to your consent order, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

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