K v K

There are two children, aged nine and three, they have latterly lived with the mother at the former matrimonial home, pursuant to a Child Arrangements Order of 7 March 2025. They have no contact with the father. The parties were married in 2011 and separated in 2023.

For the purposes of the financial proceedings, I note that the family home has a value of £370,000 with a mortgage of £265,000, and the equity is £93,824. I note that there are suggestions that the wife has some jewellery, valued between £34,000 and £58,000. Both the parties have pensions. The husband’s pension is £128,772 and the wife’s £83,360. The husband has significant liabilities, between £83,000 and £98,000. From his Form E, I note that consists of credit cards debts of £3,500, loans of £26,000 and a CCJ of £16,500. The wife’s income was £40,000 and the husband was off sick due to anxiety, stress and depression. He had previously earned within the region of £80,000. The wife asserts that he is capable of regaining high earning employment. The husband asserts homelessness. The wife states that the husband’s needs can be met by residing with his mother in extensive accommodation, or via a rental or council property.

I note that during the financial remedy proceedings, the wife also alleges conduct in relation to fraud, citing the whereabout of the family gold, various addictions of her husband, including gambling, drugs and alcohol and lack of disclosure and harassment of her, leading to an injunction and committal proceedings for which there was breach and police bail. I believe the husband was charged on 25 September 2025.

For the purposes of the financial proceedings, the wife made an offer, namely for the property to be transferred to her and a lump sum of £5,000 to the husband. This was primarily aimed at meeting her and the needs of the children for housing. It appears that that proposal was declined by the husband at the FDR, which I will return to in a moment.

The FDR culminated in an order by consent dated 1 April 2025, whereby the family home would be sold, various liabilities including the Lloyds overdraft, Lloyds credit cards and MBNA credit card paid off, and the balance paid to the wife.

Subsequent to the FDR hearing, the husband asserted that he was informed by the judge that he had 28 days to change his mind in relation to the terms of that order. That was disputed by the wife. The husband, thereafter, sought not to be bound by the terms of the order, and by order of 28 April 2025 it was recorded that if the husband wishes to challenge the order, then he needed to lodge an application to have it set aside or vary its terms. That application has now been made.

He makes various references to the basis as to why he seeks to have the order set aside.

First of all, lack of litigation capacity or vulnerability. He says he suffers ADHD, stress, depression and anxiety which impacts on his capacity to give informed consent. I note from then the exhibit NK01, which is a letter dated 19 November 2024, the husband is highly intelligent, he was an IT project manager. He is, apparently, able to understand information given one piece at a time, provided checks were made as to his understanding throughout. There is an exhibit at NK04 which is a Universal Credit medical report dated 23 January 2025, again, it states that the husband suffers from anxiety and depression, he feels overwhelmed, he has panic attacks and his ADHD affects his functioning. I note there is a cognitive functioning test which records no issues. The NK05 exhibit, dated 10 April 2024, again states that he suffers a diagnosis of anxiety and depression. There is a document dated 17 February 2025 that states that he has limited capacity for work.

The husband also seeks to overturn the order on the basis of unfairness. He is homeless. He argues that there has been financial coercive control, lack of representation as well as non-disclosure.

The wife seeks dismissal of this application and costs.

At the previous hearing before me, at which she was represented, it was asserted that there was no mention of a time limit for the husband to reconsider matters, and that matters were fully considered by the District Judge and the husband was made aware fully of the options open to him.

The husband maintained that he suffered from poor mental health, he was very emotional. He stated that the order, for the reasons given, is not fair. The wife is now intending to move elsewhere in the country to cheaper accommodation and there has been manipulation of her figures with regard to income and outgoings.

I declined, at that stage, to dismiss the application, but gave the husband the benefit of the doubt and ordered a transcript of the FDR hearing.

As a side note, the wife now seeks to relocate to Yorkshire to be close to her family. Permission has been granted by the court for her to do so within the Children Act proceedings and the husband’s subsequent appeal to that decision has been dismissed.

The husband maintains that the transcript reinforces his argument that he is impulsive under duress, that there was a failure to consider a formal capacity assessment or meaningful adjournment, and maintains that the order unequivocally states that if he does change his mind, he has 28 days in which to notify the solicitors.

What is clear from the transcript, however, is that suggestion only applies in relation to the obtaining of contents from the family home, subsequent to the order, as opposed to questioning the order itself.

Within the transcript the judge clearly sets the purpose of the Financial Dispute Resolution Hearing, which is to encourage and facilitate an agreement. The husband responds, before any indication, that the wife can have it all, he does not want anything for himself. The judge then goes on to explain the offer on the table and expresses a view that this is probably what the wife is likely to get. Namely, the house to be sold, the mortgage paid off along with the associated costs, a lump sum to the husband of £5,000 and for the wife to discharge the debts in her name and for the husband to retain the liabilities in his name and for the balance net proceeds to be paid to the wife. The Husband then state that he does not wish to have the £5,000.

I accept that during that hearing the husband was emotional. The judge quite properly asks him if he wants five minutes or so to think about matters. He says no, the wife can have it all, he says that she can throw his belongings away. This is when the judge mentions that provision can be made for him to collect his belongings within 28 days. The husband keeps insisting that she can keep his belongings. He says he may not be alive in 28 days’ time. The judge goes on to reiterate that she is happy to give the husband all day and time to think about matters so that he does not feel pressurised. The husband responds that he is not pressurised, he just wants the children to have somewhere to live and he does not want the money. He is unable to continue to do this anymore due to his health. The judge says the order can be emailed in. The husband then asks about provisions being made for the children if the wife marries remarries or cohabits. The judge responds to him as to how that can be achieved. If she sells, she will need the money from the proceeds to buy elsewhere. The husband responds that she can use her inheritance. The husband wants the money to go to the children. The judge responds that she would not likely order this by way of an indication in relation to provision for a trust for the children, due to the children’s housing needs, unless the parties were able to agree otherwise. The judge maintains that she would be happy to approve the order in the agreed terms. The domestic abuse that is alleged is not likely to have an impact on the award, although gambling and addiction does as these would not be marital debts.

He says he understands that and indicates that he is not going to change his mind and that his wife can have the money. He wants the Court to be aware that he is homeless, has health issues, and the contributions he has made and wondered whether these would come into it.

The judge says no it would not, the wife is the homemaker and first consideration has to be given to the needs of the children who are young, there is simply not enough to go round. The husband reiterates he wants the children to be housed. If there is a threat of bankruptcy then the assets would go to the trustee. The husband says he would not want that to happen. He does not want the children to be affected. The judge asks about the dispute as to gambling debts and provides a reasoned approach and analysis of the asset base, given the husband is to retain his pension and the liabilities. The husband, throughout, again maintains that the wife can have everything. He does not want to come back to court, he feels he is going to be made bankrupt and does not want the children affected. The judge comments that she would have approved the order anyway, irrespective of any prospect of a bankruptcy, the husband accepts that and accepts the order. It is clear at this point the husband is more level headed.

I gain the impression from the transcript that the husband became more reflective as the hearing went on.

I note from the transcript that the husband continues a conversation with the judge without the wife’s solicitors being present, with regard to a clean break. He apologises and says he has ADHD.

In my view, the judge cannot be criticised in her handling of this matter.

It is contended that it is clear from the transcript that at no point did the judge give the husband a 28 day cooling off period in order to challenge the order itself. I totally agree with that assessment. The 28 day period relates to the collection of his belongings.

It is further contended that there are ongoing criminal proceedings, and at no point, including within the Children Act proceedings, has the issue of capacity been raised as an issue. Accordingly, there is no ground to set aside the order.

There is also an application by the wife’s solicitors for the court to sign the transfer documentation in relation to the family home, due to the potential and anticipated non-cooperation by the husband.

The husband has also made an application for an intermediary. I have refused that application as the medical evidence in support is historic and there is no evidence as to his cognitive function being impaired to such an extent as to suggest that such an appointment is necessary. I note there have been no other court proceedings in which the issue of capacity, or his cognitive functioning has been an issue. As a side note, he has today has been supported by someone from the NHS in any event.

I have read all the statements and I have heard both parties submissions

The Husband maintains that the order should be aside because of non-disclosure in relation to bank activities and that fraud unravels all.

He objects to the application for the Court to sign the documentation on his behalf. He says he would be happy to sign them provided he is given time to do so.

He mentions orally an application under section 37 of the Matrimonial Causes Act 1973, albeit there is no formal application before the Court, and indeed no indication as to what such order relates to, bearing in mind that the order itself has yet to be implemented. He maintains that his consent to the order made at the FDR was given under duress and his capacity was compromised. He seeks to revisit the whole case.

Parties attending an FDR appointment are under a duty to use their best endeavours to reach an agreement on the matters at issue between them. Of course, that does not mean that parties should be pressurised into settling. There is no harm in allowing someone a cooling off period to consider settlement proposals post hearing with the matter being adjourned for a short period of time, or listed for a final hearing and then vacated upon the filing of a Consent Order.

In this case, the FDR culminated in an order which was subsequently perfected.

In the case of Rose v Rose [2002] EWCA Civ 208, it was said as follows:

“The whole purpose and effect of the FDR would be lost or compromised were parties free to analyse and re-evaluate a crucial decision of the previous day or the previous week and to decide on further reflection that they made the wrong choice.”

In the case of Independent Trustee Services Ltd v GP Noble Trustees Ltd & Ors [2012] EWCA Civ 195 it was said that:

“The making of the order has to be a proper and fully informed exercise of the powers contained in the 1973 Act and that, once made, it is the order which therefore governs the rights and obligations of the parties.”

Again, in Walkden v Walkden [2010] 1 FLR 174:

“Given the importance attached to finality in settlements of this nature, the circumstances must be truly exceptional before a capital settlement can be re-opened.”

The traditional grounds on which a Financial Remedy Order may be set aside include fraud, material non-disclosure, certain limited types of mistake, a subsequent event unforeseen and unforeseeable at the time that the order was made which invalidates the basis on which the order was made, if, and in so far as the order contains undertakings, and if the terms of the order remain executory.

These grounds have been restated in the cases of Bezeliansky v Bezelianskaya [2016] EWCA Civ 76 and A v B  [2018] EWFC B9 (as taken from L v L [2008] 1 FLR 26 and repeated in CB v EB [2020] EWFC 72)

Dealing with each of the traditional grounds as set out by the husband, he fails, in my view, to particularise the issue as to fraud and indeed the material non-disclosure. In fact, those points themselves are not points taken at the FDR, from which I note the assets appear to be rather limited.

There are two children aged nine, and the youngest of whom is three, they need a home, that home has to be with the mother. There is limited equity of £93,824. There is an imbalance of pension provision in favour of the husband. The wife is earning, the husband is not, although it is suggested that he may at some point in the future regain an earning capacity. The bottom line is, is first consideration has to be given to the housing needs of the children.

The Matrimonial Family Proceedings Act 1984, section 31F(6) allows the Court to vary or revoke its own orders. There is a similar power provided by the Family Procedure Rules, 4.1(6), although it is said that that does not extend to allowing the Court to revisit a final order as a substitute for an appeal.

It might be said that the Court’s power to vary or revoke an order under the Family Procedure Rules 4.1(6) could apply to final orders, as there is no restriction on what order could be made, or on what basis such an order could be made. The power to vary or revoke an order is entirely discretionary and is not prescribed by any rule or restrictions. However, it will generally require either a change of circumstances or the misleading of the judge in the initial decision, see Cole v Howlett [2015] EWHC 1697.

I note also Lord Merriman’s explanation of the difference between an appeal and a set aside application in Peek v Peek [1948] 2 All ER 297.

In an appeal the applicant says the court got it wrong on the material before it, whether in fact or law, whereas in a set aside application no error of the court is alleged because, for example, information was withheld.

Within the civil jurisdiction the Court has a similar power under Civil Procedure Rules 3.1(7) to vary or revoke orders. However, there appears to be a distinction between where the order sought to be revoked is procedural or interlocutory and those where it is final and disposes of the claim. It has been held that it is inappropriate to exercise the Court’s jurisdiction under the Civil Procedure equivalent to vary or revoke final orders or judgments which dispose of the claim. A final order remains as such unless proper grounds of appeal exist. A final judgment obtained by fraud can, of course, be set aside, but nothing less will do.

In essence, the Court must be extremely cautious in exercising its apparently broad and unfettered power under this provision and will need to take into account a wide range of factors in considering an application to vary or revoke an order.

In particular, the Court will seek to ascertain whether there has been a material or significant change of circumstances since the order was made, or whether the facts on which the original decision was made were innocently or otherwise misstated, or where there has been a manifest mistake on the part of the judge formulating the original order, or there has been material non-disclosure.

In the case of Tibbles v SIG Plc [2012] 1 WLR 2591, the court held that the discretion might be appropriately exercised normally only where there has been a material change of circumstances since the order was made, where the facts on which the original decision was made were misstated, or where there had been a manifest mistake on the part of the judge formulating the order.

In Norman v Norman [2017] EWCA Civ 120 it was held that an application to set aside a Consent Order by way of an application under rule 4.1(6), should be:

“Considered against the Tibbles criteria and against the backdrop of the desirability of finality in litigation, the undesirability of permitting litigants to have ‘two bites at the cherry’ and the need to avoid undermining the concept of appeal.”

In the case of Akhmedova v Akhmedov & Ors [2020] EWHC 2235 it was held that it was highly doubtful that the use of FPR 4.1(6) was appropriate to set aside a financial matrimonial order as there is no reference in either Practice Direction 30A or in Practice Direction 9A to other rules which might provide a procedural route for the setting aside or variation of final financial remedy orders. Accordingly, it follows that FPR rule 4.1(6) is not the correct procedural route applicable to set aside applications pertaining to final financial remedy orders.

In passing, I also refer to applications for strike out under rule 4.4(1).

In Roocroft v Ball [2016] EWCA Civ 1009, the Court of Appeal allowed an appeal from a decision dismissing an application to set aside a Consent Order on the basis of material non-disclosure and in doing so held that the strike out provisions in rule 4.4(1) and the principles and observations in Wyatt v Vince [2015] UKSC 14, in relation to the scope of that rule, applied equally to an application to set aside a Financial Remedy Order on the grounds of material non-disclosure as to an application for financial remedy.

However, in the case of MA v Roux [2024] EWHC 1917, despite being bound by that decision, Francis J disagreed with King’s LJ interpretation in Wyatt v Vince for the following reasons:

“When considering whether to strike out an application to set aside a financial remedies order made under rule 9.9A, the Court may have regard to all matters set out in rules 4.4(1)(a) to (d) and is not constrained in the same manner that an application to strike out an application for a final financial remedies order is, pursuant to Wyatt v Vince. This means when exercising its powers under 4.4(1)(a) the Court may consider whether the application has a real prospect of success.

The Court retains its full range of case management powers as set out in the Practice Direction 9A paragraph 13.8 which includes, where appropriate, the power to strike out or summarily dispose of an application to set aside a Financial Remedies Order made under rule 9.9A and these powers may be exercised with reference to real prospects of success.”

Thus, the Court does have the power to strike out or otherwise summarily determine an application to set aside a Financial Remedies Order, and it may do so by applying a merits based filter through a ‘prospects of success test’.

This is distinct from an application to strike out a final Financial Remedy Order which cannot be summarily determined as the Court is obliged to have regard to all the factors in section 25 of the Matrimonial Causes Act 1973.

Of course, this must be contrasted with the position adopted in the cases of AB v CD [2022] EWFC 116 and M v B [2025] EWFC 182, whereby the court agreed that there was scope for the court to analyse on a summary basis, the prospect of success on an application in the absence of a hearing, however abbreviated it might be.

Finally, in relation to the application to set aside Financial Remedy Orders where no error of the Court is alleged, rule 9.9A sets out the procedure for applications to set aside Financial Remedy Orders. Practice Direction 9A, paragraph 13.5 provides:

“An application to set aside a Financial Remedy Order should only be made where no error of the court is alleged. If an error of the court is alleged, an application for permission to appeal under Part 30 should be considered.”

No error is intended to mean that if an applicant wants to allege an error or that the Court is wrong, then the application must proceed by way of notice of appeal. The starting point will, of course, always be the order which one party is seeking to have set aside was properly made. A mere allegation that it was obtained, for example by non-disclosure, is not sufficient for the Court to set aside that order.

Procedurally there seems to me a bit of blurring in the remedies being sought from the husband, who I appreciate is a litigant in person. His application is for the order to be set aside, I would imagine on the basis primarily of procedural irregularity due to his state of mind at the time. Of course, if his application is on the basis that the Court was in error in approving the Consent Order, then the appropriate route would have been to appeal, but that is not his application.

In relation to the application as it is, and I think either way whatever the application before the Court is, it boils down to the same thing, in that the husband argues that the order made by consent should be set aside because his capacity to give that consent was compromised.

I have read the judgment, it is clear he was emotional, but as the hearing progressed, his views remained steadfast and became increasingly more moderated in so far as his initial emotional dysregulation was concerned. He quite clearly considered the importance of the children having a home.

I am satisfied the judge gave him ample opportunity to consider matters, to reflect and to determine whether or not he wished to conclude matters on the occasion of the FDR. In my view, the judge behaved impeccably with regard to the conduct of the hearing such that at the end of the case, it was clear that the husband’s mind was made up, he was resolute and the initial emotions that were present at the outset of the hearing had significantly reduced.

Of course, I bear in mind that all court hearings create anxiety and emotions, but it does not necessarily therefore automatically follow that litigants have a right to automatically seek to have an order set aside because upon reflection and in the ‘cold light of day’ they have cause to reconsider matters.

In my view, the husband refers to the fact that he was given 28 days to consider matters, I am afraid that is a complete misunderstanding. Even when having the transcript before him in black and white, he maintained that stance. The order and the transcript does not say that, it relates to him determining which of the items of contents he wishes to have from the property within 28 days and to notify the wife accordingly.

Sadly, this application is bound to fail. Accordingly, it stands dismissed.