Clients have asked us in the past can a Consent Order be set aside? The parties themselves can set aside a Consent Order if they wish to do so by simply agreeing to this as between themselves. So for example, if one party was intending to purchase the other party’s interest in the former matrimonial home, and the Consent Orders required them to do this within a set period, but then they changed their mind about this, the parties could reach an agreement between themselves to instead sell the property and for the second party to receive the same amount of money from the sale proceeds as they were going to if the property had been transferred. The parties need not attend court to have the Consent Order set aside in this sort of situation, although they may wish to have the change to their Consent Orders reflected by asking the court to make amended Consent Orders.
The Family Court will only entertain an application to set aside Consent Orders in fairly limited circumstances. If, for example there has been a miscarriage of justice by reason of fraud, duress, the giving a false evidence, or the suppression of evidence, then the Court may be persuaded to set aside a Consent Order. If there has been some kind of hardship arise or a change in circumstances of an exceptional nature relating to the care of a child or children of the marriage or relationship that results in hardship for one of the parties, then in that instance the court may also be open to setting aside an Order. Finally, if circumstances have arisen since the Consent Order was made which means that it is no longer practicable for the Order to be carried out then the Court may be open to setting the Consent Order aside.
Courts are also unwilling to lightly entertain the setting aside of Consent Orders made in relation to the future care arrangements for children and in fact there is a threshold test which says that the court must be satisfied that there has been a significant change in circumstances such as would warrant the matter being reopened before it will even entertain an application to set aside parenting Consent Orders.
The idea is that when the court makes final Orders it does so on the basis that these Orders will finalize the matter once and for all. For parenting matters, it is not generally considered to be in the best interests of the children for parties to be continuously going back to court to change the children’s living arrangements.