The recent case of MA v Roux marks a shift in the handling of financial remedy orders, more specifically whether an application to set aside financial remedies in family law can be struck out.
The case was an appeal that arose pursuant to the husband’s application to set aside a financial remedy order made by consent following a Financial Dispute Resolution (‘FDR’). The wife received substantial financial support from her family shortly after the FDR and the husband sought to set aside the original consent order on the basis of alleged non-disclosure. The wife then sought to strike out this application which led to the question of whether the courts can do so.
At first instance, the court determined that it did not have the power to strike out the husband’s application citing it could only take such action with legally unrecognisable claims. The wife advanced an appeal of this decision and it was overturned with the judge ruling that the courts do have the power to strike out, or summarily dismiss, applications to set aside financial remedy orders. It was noted that this is broader with applications to set aside consent orders compared to applications to set aside final financial orders. The court can do so by applying the ‘real prospects of success’ test, in other words a merit-based test. This is distinct from its counterpart for final financial orders which cannot be summarily determined as the court must have regard to all the factors in section 25 of the Matrimonial Causes Act 1973.
The judgement in Ma v Roux is significant and highlights that with such applications the evidence presented must show that the settlement reached would have been different if it was not for the alleged non-disclosure. Being disappointed or having doubts after settling is not enough because these applications will be closely scrutinised.
The decision also supports the court’s growing commitment to efficiency in financial remedy cases. It demonstrates a willingness to strike out applications considered to be without merit subsequently helping to reduce the burden on courts and litigants. It serves as a reminder that the court manage financial remedy cases with relative flexibility and will not hesitate to strike out unavailing applications.