Yes, a consent order can be changed, but only in very limited circumstances and only by the court. Once a judge has sealed your order, it is legally binding, not an agreement you can revise between you and your former partner. The route you take to vary a consent order depends on your circumstances and what you want to change.
In short: a sealed consent order can be changed three ways. Vary it, but only the parts Section 31 of the Matrimonial Causes Act 1973 allows: maintenance, instalments and orders for sale, never a clean lump sum or a property transfer. Set it aside under rule 9.9A of the Family Procedure Rules, for non-disclosure, fraud, mistake, duress or a Barder event. Or appeal, normally within 21 days. Even where you both agree, the court must approve the change.
This guide applies to England and Wales.
Not sure which route applies to your order? Our family solicitors will tell you in a free 30-minute conversation, with no obligation to instruct us today.
Can a consent order be reopened once it has been sealed?
Generally, it is not possible to simply reopen a consent order once it has been approved and sealed by a judge. From that point, the order is legally binding, and the terms can only be changed in limited circumstances.
You may be able to challenge or set aside a consent order if:
- One or both parties failed to provide full and accurate financial disclosure
- There is evidence of fraud or mistake
- There is evidence of incapacity or duress
- There has been an exceptional change in circumstances which invalidates the basis of the order
The grounds for setting aside a consent order
Setting aside is the route where something was found to be wrong with the order from the outset. Under rule 9.9A of the Family Procedure Rules 2010 a party may apply to set aside a financial remedy order, including a consent order, where no error of the court is alleged, using the Part 18 procedure.
Non-disclosure of assets
Both parties owe a duty of full and frank disclosure before an order is made. In Livesey (formerly Jenkins) v Jenkins [1985] AC 424, the House of Lords set aside an order where a material fact had not been disclosed.
Not every omission qualifies. The non-disclosure must be material, meaning the court would have made a substantially different order had it known. A forgotten account holding a few hundred pounds will not reopen a settlement; an undisclosed business interest, second property or sizeable pension may.
Fraud or misrepresentation
Where the non-disclosure was deliberate, the position is stronger. In Sharland v Sharland [2015] UKSC 60, the Supreme Court set aside an order agreed on the basis of the husband’s fraudulent evidence about his company’s value, applying the principle that fraud unravels all, and put the burden on the party who had misled the court. Gohil v Gohil [2015] UKSC 61, decided the same day, reached a similar result.
Mistake, duress or lack of capacity
An order can also be challenged where one party did not genuinely consent: signing under threat or improper pressure, signing while lacking the capacity to understand what was agreed, or a shared mistake about a fundamental fact. These turn on what happened in private, so contemporaneous documents matter.
Barder events: when circumstances change after the order
A Barder event is different. Nobody did anything wrong, but something happened after the order that destroyed the assumption on which the settlement was built. The principle comes from Barder v Caluori [1988] AC 20, where the wife and children died five weeks after an order transferring the family home to her for their benefit. The basis of the order had gone.
The four Barder conditions
An application needs all four:
- New events have occurred since the order which invalidate the basis or fundamental assumption on which it was made
- The events occurred within a relatively short time of the order, meaning months rather than years
- The application was made reasonably promptly once the event occurred
- No third party who has acquired an interest in the property in good faith would be prejudiced
The bar is high by design. Market movements, a business underperforming or a later change in circumstances are risks a settlement envisages and courts consistently decline to treat them as Barder events.
Varying, setting aside or appealing: which route applies to you?
- Vary if the terms were sound but circumstances have changed, and the order is one the court has power to change.
- Set aside if the order should never have been made in that form, because of non-disclosure, fraud, mistake, duress or a Barder event.
- Appeal if you say the judge got it wrong. Rare with a consent order, because you agreed to the terms.
What can be varied
Section 31 of the Matrimonial Causes Act 1973 sets out an exhaustive list. The court can vary or in some cases discharge:
- Maintenance pending suit and interim maintenance
- Periodical payments orders and secured periodical payments orders, meaning spousal maintenance
- An order for a lump sum payable by instalments, where the instalments can be adjusted
- An order for the sale of property under Section 24A
- A pension sharing order, but only before the final order in the divorce takes effect
The court must give first consideration to the welfare of any child under 18, and take account of any change in the matters it weighed when making the original order.
What cannot be varied
- A clean lump sum order, once made
- A property adjustment order, such as a transfer of the family home
- A pension sharing order, once it has taken effect
- A clean break, which is the whole point of it
. If what you want to change sits in this list, variation is not available and set-aside or appeal is the only route.
How do you vary a consent order?
- Speak to your ex first. An agreed variation is faster, cheaper and more likely to be approved. Put the proposal in writing.
- Consider non-court dispute resolution. Since 29 April 2024, the court can encourage mediation without needing both parties to agree.
- Update your financial disclosure. A variation is decided on current figures, not those from the original settlement.
- File a Form D11 application at the court that made the order, setting out what you want varied and why.
- Attend the hearing if required. The court will consider what has changed and whether it justifies interfering with the order.
A note for applicants: rule 28.3 allows the court to take into account any failure by a party, without good reason, to attend a MIAM or non-court dispute resolution when deciding costs. Applying to vary without at least considering mediation can mean paying your ex’s legal fees.
Time limits: how long do you have to challenge a consent order?
For an appeal, rule 30.4 of the Family Procedure Rules requires the appellant’s notice within 21 days of the decision, unless the court directs otherwise. Miss it, and you need permission to appeal out of time, which is discretionary.
For a set-aside application under rule 9.9A there is no fixed deadline. This is often reported online as a one-year limit, and it is not. What the court expects is promptness: orders have been set aside years later where non-disclosure only recently came to light, but unexplained delay counts against you and is itself one of the four Barder conditions.
For a variation, there is no time limit. The question is whether circumstances have changed enough to justify one.
What if you and your ex both agree to the change?
An agreement makes this easier, but does not remove the court. A sealed order stays in force until a judge changes it, so a private arrangement to pay less maintenance or delay a property sale has no legal effect and may not protect you if your ex later enforces the original terms.
However where the change affects something the court cannot vary, your only option will be a written agreement. It is important that you seek legal advice and have documentation confirming what you have agreed drawn up properly.
Can a judge change a consent order?
A judge cannot rewrite the terms you propose. The court checks the agreement is fair and then approves or refuses it, so a judge unhappy with the terms will raise questions or reject the order rather than amend it. Rejection is not the end of the process: the terms are revised and resubmitted. We cover what triggers this in how often a judge rejects a consent order.
Frequently asked questions
Can a consent order be overturned?
Yes, but only on limited grounds: a set-aside application under rule 9.9A for non-disclosure, fraud, mistake or duress, an appeal within 21 days, or a Barder event.
How legally binding is a consent order?
Fully binding. Once sealed it is enforceable in the same way as any order a judge imposed after a contested hearing. If your ex is not complying, see our guide to a breach of a consent order.
How long is a consent order valid?
Indefinitely, unless it says otherwise. A clean break order is final and has no expiry date. Ongoing obligations such as spousal maintenance run for the term specified, and those terms can be varied.
When can a consent order be set aside?
Where it was obtained on a false basis, through material non-disclosure, fraud, misrepresentation, mistake, duress or lack of capacity, or where a Barder event has destroyed the assumptions it rested on. Second thoughts about fairness are not a ground.
Can a clean break order be overturned?
Only by setting it aside, as it cannot be varied. The court has no power under Section 31 to reopen a clean break on a variation application, and the grounds for setting one aside are the same as for any consent order.
Can I change the child maintenance in a consent order?
Usually this falls to the Child Maintenance Service rather than the court. Most child maintenance provisions can be replaced by a CMS calculation after 12 months, which is a separate route from varying the order.
Our family law solicitors nationwide are here for you
Applying for a consent order after reaching an agreement on your finances is a major step, providing security, peace of mind and giving you a clean break from your ex. However, as there may be a situation where the order is no longer suitable, it is vital that you understand your options and whether you will be in a position to apply for a new order to be put in place.
Expert legal advice from our team can help you clarify your options and whether the arrangements you have made can be revised in any way.
At Woolley & Co Solicitors, our team are here to provide tailored consent order legal advice and to and make the process as simple and stress-free as possible.
To take advantage of your free 30-minute consultation with our expert family law solicitors, call 0800 321 3832, or complete our quick online form.
Kate Brooks
Family law solicitor – Market Harborough
This article is general information about the law in England and Wales and is not legal advice for your situation. Written by Kate Brooks, family solicitor with Woolley & Co, based in Market Harborough, Leicestershire. Woolley & Co is authorised and regulated by the Solicitors Regulation Authority, SRA number 563859.
