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Last Updated: 1 December 2016
AN ACT TO ESTABLISH FAMILY DIVISIONS OF THE HIGH COURT AND THE MAGISTRATES COURT, TO MAKE FRESH PROVISIONS RELATING TO DISSOLUTION OF MARRIAGE, SPOUSAL AND CHILD SUPPORT, PARENTING RESPONSIBILITY AND SPOUSAL PROPERTY, TO PROVIDE FOR MARRIAGE COUNSELLING AND RECONCILIATION, AND FOR RELATED MATTERS
[FAM 163] Setting aside of orders altering property interests163
163
- (a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
- (b)in the circumstances that have arisen since the order was made it is impracticable for the order or a part of if to be carried out;
- (c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
- (d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (3)) the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order,
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 161 in substitution for the order so set aside.
(2) A court may, on application by a person affected by an order made by a court under section 161 in proceedings with respect to the property of the parties to a marriage or either of them, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 161 in substitution for the order so set aside.
(3) For the purposes of subsection (1)(d), a person has caring responsibility for a child if—
- (a)the person is a parent of the child with whom the child lives;
- (b)the person has a residence order in relation to the child; or
- (c)the person has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development.
(4) An order varied or made under subsection (1) or (2) may, after the death of a party to the proceedings in which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(5) Where, before proceedings under this section in relation to an order made under section 161 are completed, either party to the proceedings dies—
- (a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the Rules of each Family Division may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
- (b)if the court is of the opinion—
- (i)that it would have exercised its powers under subsection (l) or (2) in relation to the order if the deceased party had not died; and
- (ii)that it is still appropriate to exercise its powers under subsection (1) or (2) in relation to the order,
the court may vary the order, set the order aside, or set the order aside and make another order under section 161 in substitution for the order so set aside; and
- (c)an order varied or made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(6) In the exercise of its powers under subsection (l), (2) or (5) a court must have regard to the interests of, and must make any order proper for the protection of, a bona fide purchaser or other person interested.
(7) In this section, a reference to an order made by a court under section 161 includes a reference to an order made by a court under section 86 of the Matrimonial Causes Act 1968 before the commencement of this Act.