Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. Moore-Bick LJ said: It may be unusual for a judge to conclude that despite a deliberate failure by one party to give full and frank disclosure the resulting order should not be set aside, but ultimately that must depend on the nature of the non-disclosure and its effect on the outcome of the proceedings. In this case the husband’s non-disclosure was deliberate and dishonest, but because of the rather unusual circumstances there were good reasons for concluding that it had not resulted in an order significantly different from that which the court would otherwise have made at the conclusion of the proceedings. In my view the judge was entitled to hold that the wife had not made out sufficient grounds for re-opening the hearing. That called for an exercise of judgment on his part and in my view his decision was one that was open to him.’
Briggs LJ thought having found the deceit, ‘fraud unravels all’ and the ‘the husband’s fraud undermined both the parties’ agreement and the consent order which followed ought to have been the end of the matter, and to have led to the setting aside of the consent order, and an order for a new (or perhaps resumed) hearing.’
Macur LJ said: ‘the audacity and extensive practice of a deceit cannot be determinative of the degree of its materiality to the substance of an order of the Court. It may be material in negotiations between the parties to an action or a contract or within the hearing, not least in terms of the integrity of the participants, but, applying the ratio in Livesey v Jenkins as I consider it to be, entirely in accordance with the exposition by my Lord, Lord Justice Moore-Bick, it will not necessarily undermine the rationale or content of an order made, whether by consent or after hearing in matrimonial proceedings.
In this case Sir Hugh, not being functus officio, considered the matter having directed and received further evidence from the husband and submissions from Counsel, and determined that ultimately it did not.’
Macur LJ placed particular emphasis on the wife’s failure to cross examine the husband on his affidavit.
Judges:
Moore-Bick, Briggs, Macur LJJ
Citations:
[2014] EWCA Civ 95, [2014] 2 FCR 189
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Appeal from – S v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Bokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Cited by:
Appeal from – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 09 December 2022; Ref: scu.521110