Setting Aside Consent Order on Ancillary Relief
On 11 February 2019, the Guidance on Setting Aside a
Consent Order on Ancillary Relief issued by the Hong Kong Judiciary under Practice Direction SL10.3 has come into effect.
Meaning of Consent Order on Ancillary Relief?
In the Guidance, “a consent order on ancillary relief” means any Order made by the Hong Kong Court upon the consent of the parties to matrimonial proceedings under Sections 4, 5, 6, 6A or 29AG of the Matrimonial Proceedings and Property Ordinance (Cap 192) and includes part of such an order.
The Guidance deals with the relevant practice and procedure for setting aside a consent order on ancillary relief where no error of the Court is alleged.
If an error of the Court is alleged, an application for leave to appeal against the consent order under section 14(3)(e) of the High Court Ordinance (Cap 4) or section 63(1) of the District Court Ordinance (Cap 336) should be made.
Setting Aside Consent Order by Summons
Application to the Court by way of Summons for setting aside a consent order on ancillary relief in existing proceedings is normally not allowed. The procedural route is available only if the case falls within a very limited scope, for example:
1) the application is uncontested or
2) the mistakes relied upon for setting aside the consent order are not in dispute, see paragraphs 20-23 of case Wong Oi Han v Sin Wai Cheung  3 HKLRD 142
If the application does not fall within the above limited scope, the following procedures shall apply.
Other ways to Set Aside Consent Order on Ancillary Relief
Application for setting aside a consent order on ancillary relief shall be made -
(1) by way of a fresh action in the Court of First Instance (CFI); or
(2) in the District Court where the District Court has the jurisdiction under Part IV of the District Court Ordinance (Cap 336); and
(1) where there is a substantial dispute as to facts, by way of Writ of Summons; or
(2) where appropriate, by way of Originating Summons.
The Court proceedings would usually be open to the public.
Transfer of Proceedings from CFI to District Court
Where an action is commenced in the Court of First Instance (CFI), the Court may transfer the action to the District Court (including the Family Court which is a division of the District Court assigned by the Chief Justice to deal with Matrimonial Proceedings and / or Family Proceedings) pursuant to sections 43 or 44 of the District Court Ordinance (Cap 336), so that the action can be tried in the District Court or by the original family judge whose order the plaintiff is seeking to set aside.
For legal services and advice on divorce, children custody and maintenance disputes, please contact Chow & Cheung, Hong Kong Solicitors & Notary Public [E-mail: email@example.com]