Lack of capacity raises doubts over validity of financial consent order in MAP v RAP

Posted: 07/10/2014


Can the Family Court revoke a consent order if one of the parties lacked mental capacity at the time it was signed? 

Mr Justice Mostyn, sitting in the Family Division at the High Court, has ruled in the case of MAP v RAP [2013] EWHC 4784 that a wife can apply to revoke a financial consent order made in 2012.  At the time, she was suffering from bi-polar affective disorder and was representing herself.  She had apparently agreed to the terms of a financial consent order, which left the husband with approximately 80% of the family assets. The agreement also provided for a ‘clean break’, leaving the husband with all his earnings and pension and the wife with only a modest pension.

The judge found that the wife had a clearly arguable case that she lacked mental capacity at the time and that she could not therefore have consented to an order being made. The judge was concerned that the husband and his solicitors, who were apparently aware of her mental condition, had not alerted the court.

There are many circumstances which can mean that somebody lacks the capacity to enter into a binding agreement. This may be as a result of mental illness or drug or alcohol addiction.  Specialist family law solicitors at Penningtons Manches have wide experience of dealing with cases involving issues of capacity.

Simon Blain, senior associate in Penningtons Manches’ family law team, commented: “The judgement is a timely reminder to solicitors that they are under a duty to ensure that both their client and the other party understand the consequences of any agreement.  This is particularly important when increasing numbers of people are representing themselves in the Family Courts.”


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