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When the rules break the rules: appeals against pension sharing
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In
CS v ACS (Consent Order: Non-Disclosure: Correct Procedure) [2015] EWHC 1005 (Fam)
[2016] 1 FLR 131 the President Sir James Munby ruled that paragraph 14.1 of Practice Direction 30A of the Family Procedure Rules 2010 was
ultra vires
or made without the power to make it. The material part of para 14.1 of PD30A read as follows:
'An appeal is the only way in which a consent order can be challenged'
This statement conflicted with long-standing common law practice in the courts and with the specific statutory powers of the Family Court conferred by s 31F(6) of the Matrimonial and Family Proceedings Act 1984. The President ruled that the procedural rules could not fetter the long-standing right of a party to proceedings to seek a set-aside of that order where that right was enshrined in statute. The words set out above were struck down as being a nullity.
It seems to me that paragraph 14.1 may not be the only part of PD30A which is ultra vires. Although I spotted this a while ago I have been too diffident to mention it publically until the revelation in
CS v ACS that the authors...
Read the full article here.
