H and W agreed a consent order following a divorce under which H was to pay W andpound;13,000 from his half-share of the matrimonial home in settlement of W’s claims for financial provision for herself. Both consulted solicitors and the agreement was reached without affidavits having been filed. The agreement was embodied in a court order under sections 23 and 25 of the Act of 1973. Both had failed to disclose relevant matters: W her intention to remarry, and H as to his resources, and that he was cohabiting. W re-married shortly after decree absolute, and H husband brought an action in the QBD to rescind the agreement and order on four grounds: that W had fraudulently misrepresented to him that she did not intend to; the doctrine of uberrima fides applied to the agreement; that the established practice of the Family Division imposed a duty to make a full and frank disclosure of all material facts before an order was made; and that H had made the agreement under a unilateral mistake in that he believed that the wife did not intend to remarry. It was transferred to the Family Division and tried there by Tudor Evans J.
Held: The order stood. As to the grounds. On fraudulent misrepresentation, the case failed on the facts. The uberrima fides doctine at common law did not apply. Since no affidavits had been filed, and the parties were bargaining at arm’s length with the help of their respective solicitors, the usual Family Division requirement for disclosure did not apply. As to unilateral mistake, H had had in mind the possibility that W might remarry when he made the offer to pay andpound;13,000 in settlement of all her claims, and he was not affected by a fundamental mistake of fact entitling him to rescind the agreement.
Judges:
Tudor Evans J
Citations:
[1977] 1 WLR 199
Statutes:
Matrimonial Causes Act 1973 23 25
Jurisdiction:
England and Wales
Cited by:
Criticised in part – 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 . .
Cited – 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: 04 May 2022; Ref: scu.259834