Livesey (formerly Jenkins) (A.P) (Respondent)
v.
Jenkins (A.P) (Appellant)
JUDGMENT
Die Jovis 13° Decembris 1984
Upon Report from the Appellate Committee to whom was
referred the Cause Livesey (formerly Jenkins) against
Jenkins, That the Committee had heard Counsel on Monday the
12th and Tuesday the 13th days of November last upon the
Petition and Appeal of David Henry Jenkins of Tamsquite
House, St. Tudy, Bodmin in the County of Cornwall praying
that the matter of the Order set forth in the Schedule
thereto, namely an Order of Her Majesty’s Court of Appeal of
the 21st day of December 1983, might be reviewed before Her
Majesty the Queen in Her Court of Parliament and that the
said Order might be reversed, varied or altered or that the
Petitioner might have such other relief in the premises as to
Her Majesty the Queen in Her Court of Parliament might seem
meet; as also upon the Case of Beryl Livesey (formerly
Jenkins) lodged in answer to the said Appeal and due
consideration had this day of what was offered on either side
in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal of the 21st day of December 1983 complained of in the
said Appeal be, and the same is hereby set aside, save for
legal aid taxation and that the cause be, and the same is
hereby, Remitted back to the Family Division of the High
Court of Justice for rehearing of the proceedings for
financial provision and property adjustment: And it is
further Ordered, That the Costs of the Appellant and the
Respondent in this House be taxed in accordance with Schedule
2 to the Legal Aid Act 1974: And it is also further Ordered,
That all other questions of costs be and the same are hereby,
remitted back to the Family Division of the High Court of
Justice.
Cler: Parliamentor:
HOUSE OF LORDS
LIVESEY (FORMERLY JENKINS)
(RESPONDENT)
V.
JENKINS (A.P.)
(APPELLANT) (ENGLAND)
Lord Chancellor
Lord Scarman
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Brandon of Oakbrook
LORD HAILSHAM OF ST. MARYLEBONE L.C.
My Lords,
I have had the advantage of reading in draft the speech
about to be delivered by my noble and learned friend Lord Brandon
of Oakbrook. I agree with every word of it and am in
consequence of the opinion that this appeal must be allowed, the
order set aside and the proceedings remitted for rehearing by a
judge of the Family Division in the form suggested by my noble
and learned friend.
There is, therefore, nothing useful that I can add on the
merits of the appeal. Since, however, the advisers to the
respondent clearly attached importance to my doing so I wish to
add that they acted in perfect good faith throughout, since, at the
material time, that is, at the time the consent order was
perfected, they were not aware of the essential fact of which
there had been non-disclosure.
I would also wish to add that though, for the reasons given
by my noble and learned friend, I do not agree with it, I fully
understand the position of the respondent. A former wife is
naturally reticent about any plan she may have to remarry, and I
do not think she was fully aware (though she should have been) of
the vital nature of the information she was withholding from the
other side and from the court.
I would also wish to underscore the warning with which my
noble and learned friend is concluding his speech. Consent orders
which effect a clean break between former spouses are, when
there has been full relevant disclosure, much to be encouraged,
and, properly negotiated, greatly reduce the pain and trauma of
divorce. They are, therefore, not lightly to be overthrown.
LORD SCARMAN
My Lords,
I have had the advantage of reading in draft the speech to
be delivered by my noble and learned friend Lord Brandon of
Oakbrook. I agree with it, and for the reasons he gives I would
– 1 –
allow the appeal. I agree that the consent order made on 2
September 1982 should be set aside and the proceedings for
financial provision and property adjustment remitted to the Family
Division of the High Court for rehearing by a judge of that
division.
Before leaving the case I wish to express my firm support
for the emphatic word of warning with which my noble and
learned friend concludes his speech. The principle of the “clean
break” as formulated in Minton v. Minton [1979] A.C. 593, 601
(Viscount Dilhorne) and 608 (myself) retains its place of importance
in the law. The justice of the clean break depends upon the full
and frank disclosure of ail material matters by the parties. But
orders, whether made by consent or in proceedings which are
contested, are not to be set aside on the ground of non-disclosure
if the disclosure would not have made any substantial difference to
the order which the court would have made.
LORD KEITH OF KINKEL
My Lords,
I have had the advantage of reading in draft the speech to
be delivered by my noble and learned friend, Lord Brandon of
Oakbrook. I agree with it, and for the reasons he gives I too
would allow the appeal.
LORD BRIDGE OF HARWICH
My Lords,
For the reasons given in the speech of my noble and learned
friend Lord Brandon of Oakbrook, with which I fully agree, I would
allow the appeal and remit the proceedings for rehearing by a
judge of the Family Division of the High Court.
LORD BRANDON OF OAKBROOK
My Lords,
This appeal arises in the field of family law and concerns
the making by the court of consent orders for financial provision
and property adjustment following a divorce.
On the facts of the present case two important questions of
principle require to be decided by your Lordships. The first
question is this. Where a compromise in respect of claims for
financial provision and property adjustment made by either or both
of the former spouses has been reached by two firms of solicitors
acting on their respective behalf, with the intention that the terms
– 2 –
of such compromise shall subsequently be given effect to by a
consent order of the court, is each of the former spouses under a
remaining duty to disclose to the other, or to the other’s
solicitors, the occurrence of a material change in his or her
situation, which has taken place after the compromise has been
reached, but before effect has been given to it by the making of
a consent order by the court? The second question is this.
Assuming that the remaining duty referred to above exists, and is
not complied with by one of the two former spouses, so that a
consent order is made by the court without such material change
having been taken into account, is the other former spouse
entitled, in proceedings before a judge of first instance, to have
the order so made set aside?
As will appear, a circuit judge and the Court of Appeal
have held, in effect, in the present case, in favour of a former
wife and against a former husband, that there is no remaining duty
of disclosure of the kind mentioned in the first question above;
and that, since there is no such duty, the second question referred
to above does not arise. The former husband now brings a further
appeal with regard to these matters, with the leave of the Court
of Appeal, to your Lordships’ House.
The appellant is David Henry Jenkins and the respondent is
Beryl Livesey (formerly Jenkins). In what follows I shall for
convenience refer to them as “the husband” and “the wife”
respectively, despite the fact that, by reason of the divorce which
I shall mention shortly, they are no longer married to each other.
The husband and the wife were married on 20 February
1957. There are two children of the family, both boys: Matthew,
now aged 15, and Nicholas, now aged 13. Prior to 15 October
1981 the husband and the wife, with their two children, were
living in a house near Liskeard in Cornwall. That house, to which
I shall refer from now on as “the matrimonial home,” was owned
jointly by the husband and the wife, subject to a mortgage on it.
On 15 October 1981, following marital disagreements apparently
arising from the husband’s association with another woman, the
husband left the matrimonial home, since when he has never
returned to live in it.
Before the husband left both he and the wife had consulted
different firms of solicitors about their marital troubles. As a
result an exchange of letters between these two firms, relating to
the affairs of the husband and the wife and the two children, had
begun on 9 September 1981 and continued for a long time
afterwards. In the course of that correspondence the two firms of
solicitors succeeded in reaching agreement on a number of matters
on behalf of their respective clients.
The first agreement was that, since the marriage had broken
down irretrievably, the wife should divorce the husband on the
basis of a written confession of adultery to be provided by him.
The second agreement was that the wife should have custody of
the two children, with reasonable access for the husband. The
third agreement was that, following the proposed divorce, there
should be a consent order of the court in respect of financial
provision and property adjustment, which would dispose finally of
all claims by both the husband and the wife in respect of such
matters.
– 3 –
In accordance with these agreements the wife presented a
petition for divorce in the Plymouth County Court, and on 1
March 1982 was granted a decree nisi in an undefended suit. That
decree was made absolute on 14 April 1982. Meanwhile
negotiations with regard to the proposed consent order for
financial provision and property adjustment were continuing, and on
or about 12 August 1982 the solicitors on either side reached final
agreement about the form and terms of such order.
The proposed consent order so agreed contained two
essential provisions material to this appeal. The first such
provision was that the husband should transfer to the wife his
half-share in the matrimonial home, subject to the mortgage on it,
for which the wife would, after such transfer, have sole
responsibility. The expressed purpose of this transfer was to
provide the wife with a home entirely of her own, in which she
could live with the two children. The second essential provision
was that, with the wife’s consent, all her claims for financial
provision for herself should be finally dismissed.
It is apparent from the correspondence between the
solicitors on either side that these two essential provisions of the
proposed form of consent order were interdependent, that is to say
that, in substance, the consideration for the transfer by the
husband to the wife of his half-share in the matrimonial home was
the wife’s final abandonment of all claims by her for financial
provision for herself, and vice versa.
The proposed consent order contained a number of other
provisions in addition to the two essential provisions referred to
above. These are not, however, directly relevant to the appeal,
and it will therefore be convenient to defer setting them out in
full until a later stage. The possibility of the wife deciding to re-
marry another man at any time, and more particularly of her
doing so in the near future, before the proposed consent order
came to be put into effect by the court, was never once
mentioned in the correspondence between the solicitors on either
side, or between the parties themselves.
On 18 August 1982 the wife became engaged to be married
to another man, Thomas Livesey, whom she had first met on 12
July 1982. She did not disclose the fact of this engagement either
to the husband or his solicitors or even to her own solicitors.
On 19 August 1982 the solicitors for the husband and the
wife issued jointly on behalf of their respective clients in the
Plymouth County Court a registrar’s summons applying for a
consent order in the form and terms previously agreed between
them. On 2 September 1982, the wife still not having disclosed
the fact of her engagement to Thomas Livesey either to the
husband or his solicitors, or to her own solicitors, Mr. Registrar
Carder made the consent order which had been jointly applied for
in the summons of 19 August 1982. The registrar, in accordance
with common practice at that time, did not make any inquiries of
his own about the nature or basis of the proposed consent order,
but, relying on the fact that the husband and the wife were both
represented by solicitors, made an order on 2 September 1982 in
the form and terms sought.
– 4 –
The full terms of the order so made were as follows:
“Upon the joint application of the petitioner and the
respondent it is ordered: 1. That the respondent do within
28 days of the granting of the order transfer to the
petitioner his interest in the former matrimonial home
situate and known as Peach Tree Cottage, Higher Tremar,
St. Cleer near Liskeard in the county of Cornwall. 2. That
the petitioner shall be solely responsible for the mortgage,
insurance, general and water rates and all other outgoings in
respect of the said Peach Tree Cottage as from the date of
the transfer of the respondent’s interest in the property to
the petitioner. 3. That the respondent do pay or cause to
be paid as from the date of the order hereunder periodical
payments to the children Matthew Charles Jenkins (born
4.10.69) and Nicholas Robert Jenkins (born 20.1.71) at the
rate of £7.50 per week each until they shall attain the age
of 17 years or further order. 4. That the respondent do
accept sole responsibility for payment of the overdraft (if
any) on the parties’ current account with the Midland Bank
Plc. and the overdraft (if any) on the parties’ budget
account with the Midland Bank Plc. 5. That the respondent
do accept sole responsibility for discharging the loan account
with the Midland Bank Plc. in respect of his motor cycle
and the petitioner shall release any interest she may have in
the said motor cycle to the respondent. 6. That the
petitioner do accept sole responsibility for discharging the
loan account with the Midland Bank Plc. in respect of the
wood-burning stove and insulation. 7. That the petitioner do
retain and the respondent do transfer to the petitioner all
his interest in the ‘H’ registration Hillman Avenger motor
car. 8. That the petitioner and the respondent each retain
such items forming part of the contents of the former
matrimonial home as held by them on or before 14
December 1981, save that the respondent be at liberty to
collect and retain as his sole property the tools (other than
the gardening tools) at the former matrimonial home. 9.
That all other claims of the petitioner and the respondent
against each other for periodical payments, maintenance
pending suit, lump sums, secured provision and property
adjustment or settlement are hereby dismissed. 10. That
neither party shall upon the death of the other apply for an
order under section 2 of the Inheritance (Provision for
Family and Dependants) Act 1975. 11. That there should be
no order as to costs.”
My Lords, the form of this order is open to criticism in a
number of respects. These criticisms, however, have no direct
bearing on the substance of the appeal, and I shall, therefore,
defer reference to them until later.
On 22 September 1982 the husband, in accordance with
paragraph 1 of the consent order, executed a conveyance to the
wife of his half-share in the matrimonial home. That home had a
value of about £28,000, subject to a mortgage of £3,646, so that
the value of the transfer was somewhat over £12,000.
Two days later, on 24 September 1982, the wife married
Thomas Livesey. The husband later learned of the marriage and
– 5 –
further correspondence relating to it then ensued between the
solicitors on either side. In a letter dated 21 October 1982 the
husband’s solicitors complained that the husband had been induced
to agree to the making of the consent order by a
misrepresentation by the wife as to her true position. In a letter
dated 1 November 1982 the wife’s solicitors denied any
misrepresentation by the wife, asserted that the husband’s
solicitors must have taken into account the possibility of the wife
remarrying when advising the husband about the consent order, and
said that it had in any case been for the husband to make any
necessary inquiries with regard to the matter.
My Lords, the suggestion that the wife had made any
misrepresentation to the husband or his solicitors, which induced
him to agree to the making of the consent order, cannot be
supported. The true position was that the wife, having become
engaged to be married to Thomas Livesey on 19 August 1982,
failed to disclose that fact at any time before the consent order
was made on 2 September 1982. The importance of that non-
disclosure lay in this: that, by section 28 of the Matrimonial
Causes Act 1973, the wife would, on remarriage, have lost
permanently any right to any financial provision from the husband.
That being so, if the husband or his solicitors had been informed
of the intended remarriage at any time before the consent order
was made, it is clear that the husband would have withdrawn his
consent to the making of that order, under which, in substance,
the consideration for the transfer by him to the wife of his half-
share in the matrimonial home was, as I indicated earlier, her
agreement to the final dismissal of ail her claims for financial
provision for herself.
About two months after the wife had been remarried, she
arranged for the publication in the Cornish Times of 26 November
1982 of an advertisement for the sale of the matrimonial home at
a price of £28,000. In view, however, of the further proceedings
to which I shall now refer, the wife did not proceed with the
intended sale.
On 3 April 1983 the husband’s solicitors issued in the
Plymouth County Court a registrar’s summons applying, first, for
leave to appeal out of time against the consent order made by Mr.
Registrar Carder on 2 September 1982, and, secondly, for that
order to be set aside. The grounds of the application stated in
the summons were, first, that the wife had failed to disclose a
material fact, namely that she intended to remarry, and, secondly,
the fact of her remarriage. The husband’s solicitors filed two
affidavits by him in support of his application, in which he stated
that he had first learnt of the wife’s remarriage in the middle of
October 1982. The wife’s solicitors filed an affidavit by her in
answer, in which she admitted that the husband did not learn of
her remarriage until 10 October 1982. There was further available
at the hearing of the husband’s application an agreed bundle
containing copies of all the material letters which had passed
between the solicitors on either side from beginning to end.
The husband’s summons dated 3 April 1983 was heard on 5
May 1983, not by a registrar, but by a circuit judge, Judge Cox.
The learned judge, in his judgment, after discussing the delay by
the husband in making his application, exercised his discretion to
– 6 –
allow the husband’s appeal against the consent order to be brought
out of time. Having done so, he proceeded to deal with the
substantive appeal. He said that he was not satisfied that there
had been full disclosure by the wife before the consent order was
made, but considered himself bound, by an earlier decision of the
Family Division of the High Court, to refuse to set aside the
consent order on that ground. The decision concerned was that of
Tudor Evans J. in Wales v. Wadham [1977] 1 W.L.R. 199.
By notice of appeal dated 14 June 1983 the husband
appealed to the Court of Appeal against the decision of Judge
Cox. The appeal was heard on 21 December 1983 by a two-judge
court, consisting of Sir John Arnold P. and Heilbron J. That court
dismissed the appeal, but gave the husband leave to bring a
further appeal to your Lordships’ House.
My Lords, there can be no doubt that this appeal raises
important questions of principle in family law. None of the
authorities which have any bearing on those questions are binding
on your Lordships’ House, and I propose, therefore, to consider the
questions first from the point of view of principle, and to examine
and comment on some of the relevant authorities later.
In considering the questions from the point of view of
principle, there are four matters which I think that it is necessary
to state and emphasise from the beginning. The first matter is
that the powers of a judge of the Family Division of the High
Court, or of a judge of a divorce county court, to make orders for
financial provision and property adjustment following a divorce are
conferred on them, and conferred on them solely, by statute, the
relevant statute at the time of the proceedings out of which this
appeal arises being the Matrimonial Causes Act 1973. The second
matter is that there is no difference in this respect between a
judge’s powers to make such orders after a disputed hearing
involving evidence on both sides, and his powers to make such
orders by the consent of the parties without having heard any
evidence at all. The third matter is that the powers of registrars
to make such orders, when delegated to them by rules of court,
are exactly the same as those of judges, whether the proceedings
concerned are in the principal registry of the Family Division, or
in the registry of a divorce county court. The fourth matter is
that, when parties agree the provisions of a consent order, and the
court subsequently gives effect to such agreement by approving the
provisions concerned and embodying them in an order of the court,
the legal effect of those provisions is derived from the court order
itself, and does not depend any longer on the agreement between
the parties: de Lasala v. de Lasala [1980] AC 546, 560G-H per
Lord Diplock.
The powers to make orders for financial provision following
a divorce were at the material time, and are still, conferred by
section 23 of the Act of 1973. The kinds of orders for financial
provision authorised by section 23(1) include orders for the making
by one of the former spouses to the other, or by either of such
former spouses to a specified person for the benefit of any
children of the family, or to such children themselves, of, first,
unsecured periodical payments, secondly, secured periodical
payments, and, thirdly, lump sums.
– 7 –
The powers to make orders for property adjustment
following a divorce were at the material time, and are still,
conferred by section 24 of the Act of 1973. The kinds of orders
for property adjustment authorised by section 24(1) include orders
for the transfer of property of any kind by either or each of the
former spouses to the other, or to a specified person for the
benefit of any children of the family; orders for the settlement
by either of the former spouses of property of any kind for the
benefit either of the other former spouse, or of any children of
the family; orders varying, for the benefit of the two former
spouses and any children of the family, any ante-nuptial or post-
nuptial settlements; and orders extinguishing or reducing the
interest of either of the former spouses under any such
settlements.
The powers conferred by section 23 and section 24, which I
have summarised above, are essentially discretionary powers, and
section 25 of the Act of 1973 prescribed at the material time the
criteria by reference to which courts should exercise the discretion
so given to them. That section has since been repealed and
replaced by a new and different section 25 by section 3 of the
Matrimonial and Family Proceedings Act 1984.
Section 25(1) of the Act of 1973, as originally enacted,
provided as follows:
“It shall be the duty of the court in deciding whether to
exercise its powers under section 23(1)(a), (b) or (c) or 24
above in relation to a party to the marriage and, if so, in
what manner, to have regard to all the circumstances of the
case including the following matters, that is to say – (a)
the income, earning capacity, property and other financial
resources which each of the parties to the marriage has or
is likely to have in the foreseeable future; (b) the financial
needs, obligations and responsibilities which each of the
parties to the marriage has or is likely to have in the
foreseeable future; . . .” (The remainder of the subsection
is not material to the appeal.)
The references to the powers under section 23(l)(a), (b) or
(c) are references to the powers to order financial provision to be
made by one former spouse to the other in the form of unsecured
periodical payments, secured periodical payments and lump sums.
My Lords, the terms of section 25(1) of the Act of 1973
which I have set out above are, in my opinion, of crucial
importance in relation to the questions raised by this appeal. The
scheme which the legislature enacted by sections 23, 24 and 25 of
the Act of 1973 was a scheme under which the court would be
bound, before deciding whether to exercise its powers under
sections 23 and 24, and, if so, in what manner, to have regard to
all the circumstances of the case, including, inter alia, the
particular matters specified in paragraphs (a) and (b) of section
25(1). It follows that, in proceedings in which parties invoke the
exercise of the court’s powers under sections 23 and 24, they must
provide the court with information about ail the circumstances of
the case, including, inter alia, the particular matters so specified.
Unless they do so, directly or indirectly, and ensure that the
information provided is correct, complete and up to date, the
– 8 –
court is not equipped to exercise, and cannot therefore lawfully
and properly exercise, its discretion in the manner ordained by
section 25(1).
In contested cases relating to the exercise of the court’s
powers under sections 23 and 24 the requirement that it should
have the prescribed information is met by rules of court with
which both parties must comply. The relevant rules are the
Matrimonial Causes Rules 1977 (S.1 1977 No.344). Rules 73 to 76
deal with affidavit evidence to be filed. Rule 77 deals with the
investigation by a registrar of applications, in the course of which
one party may be compelled to give further information to the
other on any material matter; orders may be made for lists or
affidavits of documents and for the inspection and production of
documents referred to in them; for the hearing of oral evidence;
for the cross-examination of deponents upon their affidavits; and
for the filing of further affidavits. Only when the registrar has
before him all the material which he considers to be necessary for
the exercise of his discretion under section 25(1) – and there may
have to be more than one hearing before him in order that this
should be achieved – does he go on to make such orders, if any,
as he thinks right under subsection 23 and 24. If the contested
claims come before a judge instead of a registrar, as often
happens in more difficult cases, the procedure is the same. Any
changes in the situation of either party occurring between the
filing of the original affidavits and the final disposition of the
claims by the court must be brought to the notice of the other
party and the court by further affidavits or otherwise. In this
way, so far as contested claims are concerned, the court should
normally be provided directly with adequate information on all the
matters to which it is bound to have regard under section 25(1).
The situation with regard to consent orders, especially where
no affidavits are filed at all and reliance is placed entirely on the
exchange of information between the solicitors of the parties, was
at the material time less satisfactory. There were at the time of
the proceedings out of which this appeal arises no statutory
provisions or rules of court relating specifically to the making of
consent orders. It was, as I indicated earlier, common practice
for registrars to make such orders without making any inquiries
themselves, but relying simply on the fact that both parties were
represented by solicitors, and that these could be relied on to have
inquired adequately into all the matters to which regard has to be
had under section 25(1) before advising their respective clients to
agree to the making of consent orders by the court. In this way
the court considered that it was indirectly, through the medium of
the solicitors concerned, having regard to ail such matters before
making the consent orders sought. I do not suggest that this
practice was wholly satisfactory, and, as I shall show later, it has
since been improved.
I stated earlier that, unless a court is provided with correct,
complete and up to date information on the matters to which,
under section 25(1), it is required to have regard, it cannot
lawfully or properly exercise its discretion in the manner ordained
by that subsection. It follows necessarily from this that each
party concerned in claims for financial provision and property
adjustment (or other forms of ancillary relief not material in the
present case) owes a duty to the court to make full and frank
– 9 –
disclosure of all material facts to the other party and the court.
This principle of full and frank disclosure in proceedings of this
kind has long been recognised and enforced as a matter of
practice. The legal basis of that principle, and the justification
for it, are to be found in the statutory provisions to which I have
referred.
My Lords, once it is accepted that this principle of full and
frank disclosure exists, it is obvious that it must apply not only to
contested proceedings heard with full evidence adduced before the
court, but also to exchanges of information between parties and
their solicitors leading to the making of consent orders without
further inquiry by the court. If that were not so, it would be
impossible for a court to have any assurance that the requirements
of section 25(1) were complied with before it made such consent
orders.
Applying this principle to the facts of the present case,
there can be no doubt whatever that the fact that the wife had,
on 18 August 1982, become engaged to be remarried shortly to
Thomas Livesey was a matter which she was under a duty to
disclose before the agreement with regard to financial provision
and property adjustment previously reached between the solicitors
on either side was put into effect, as it was on 2 September 1982,
by the making of a consent order in the form and terms so
agreed. This is because the fact of the wife’s engagement was
one of the circumstances of the case referred to in line 4 of
section 25(1), and was further of direct relevance to the particular
matters specified in paragraphs (a) and (b) of that subsection.
Such disclosure should have been made by the wife to her own
solicitors, and through them to the husband’s solicitors, and the
husband himself, as soon as the engagement to remarry took place.
Since it was not made, the consent order was invalid, and the
husband should be entitled, in order to prevent injustice, to have it
set aside.
My Lords, I have until now discussed the two questions
raised by this appeal, namely, whether the wife was under a duty
to disclose her engagement as soon as it occurred and whether her
failure to do so entitled the husband to have the consent order set
aside, from the point of view of principle only. I turn now to
examine and comment on such recent authorities as have a bearing
on these matters.
The most important of such authorities is Wales v. Wadham
[1977] 1 W.L.R. 199, which, as I indicated earlier, was an authority
against the existence of any duty of disclosure, by which Judge
Cox rightly considered himself to be bound, and which the Court
of Appeal approved and applied.
The essential facts of that case were these. It was agreed
between the husband and the wife that a consent order should be
made following a divorce under which the husband should pay to
the wife, out of his half-share of the former matrimonial home,
the sum of £13,000 in full and final settlement of any claims
which she might otherwise have for financial provision for herself.
Both parties consulted solicitors and the agreement was reached
without any affidavits having been filed. The agreed terms were
subsequently embodied in a court order made under sections 23 and
– 10 –
25 of the Act of 1973. In the course of the negotiations both
parties failed to disclose matters relevant to the making of an
order for financial provision. The wife failed to disclose the fact
that she intended to remarry soon after decree absolute. The
husband failed to disclose the resources available to him and
another woman with whom he was living.
The wife having re-married shortly after decree absolute,
the husband brought an action in the Bristol District Registry of
the Queen’s Bench Division, in which he claimed rescission of the
agreement and a declaration that the consent order be set aside
on four main grounds. These were, first, that the wife had
fraudulently misrepresented to him that she did not intend to
remarry. Secondly, that the agreement had been made in such
circumstances that the doctrine of uberrima fides applied to it at
common law. Thirdly, that the established practice of the Family
Division imposed a duty on parties to proceedings for financial
provision and other forms of ancillary relief a duty to make a full
and frank disclosure of all material facts before any order was
made. And, fourthly, that the husband had entered into the
agreement under a unilateral mistake in that he believed that the
wife did not intend to remarry.
The action, having been begun in the Queen’s Bench Division
of the High Court, was subsequently transferred to the Family
Division and tried there by Tudor Evans J. The learned judge
decided the action in favour of the wife. He dealt with the
husband’s four grounds of claim in this way. First, with regard to
fraudulent misrepresentation, he found that the case failed on the
facts. Secondly, with regard to the agreement being one to which
the doctrine of uberrima fides applied at common law, he held
that, in the circumstances in which the negotiations for the
agreement took place and the agreement was ultimately made, the
common law doctrine relied on did not apply. Thirdly, with regard
to the practice of the Family Division under which parties to
proceedings for financial provision or other ancillary relief were
required to make full and frank disclosure of all material facts, he
held that, since no affidavits had been filed, and the parties were
bargaining at arm’s length with the help of their respective
solicitors, the usual requirement for such disclosure did not apply.
Fourthly, with regard to unilateral mistake, he held that, since the
husband had had in mind the possibility that the wife might
remarry when he made the offer to pay £13,000 in settlement of
all her claims, it was impossible to find that the husband’s mind
was affected by a fundamental mistake of fact such as to entitle
him to rescind the agreement on that ground.
My Lords, I do not consider that the manner in which Tudor
Evans J. disposed of the first, second and fourth of the husband’s
grounds of claim are open to criticism in any way. With regard
to the manner in which he disposed of the third ground of claim,
however, I am clearly of opinion that he erred in law. That he
did so is understandable, because the husband’s attack was directed
primarily at the agreement between the parties, and only
secondarily at the consent order made pursuant to it, whereas
what really mattered was that consent order, from which, once it
had been made, the rights of the parties were derived to the
exclusion of the earlier agreement itself.
– 11 –
When the question of the validity of the consent order, as
distinct from that of the earlier agreement, is looked at, it
becomes apparent that the principle of full and frank disclosure of
all material facts, depending as it does, for the reasons which I
gave earlier, on the terms of section 25(1) of the Act of 1973,
could not in any circumstances be rendered inapplicable by the
manner in which the earlier agreement was negotiated and
reached. The principle concerned does not depend in any way on
the concept that the parties must, in reaching an agreement for a
consent order, show uberrima fides in the contractual connotation
of that expression. It depends rather on the statutory requirement
imposed by section 25(1), that the court must exercise its
discretion to make orders under sections 23 and 24 in accordance
with the criteria prescribed by that subsection, and that, unless
the parties make full and frank disclosure of ail material matters,
the court cannot lawfully or properly exercise such discretion.
In my judgment, therefore, Tudor Evans J. was wrong in
Wales v. Wadham to reject so much of the husband’s claim as was
based on the need for full and frank disclosure in ancillary
proceedings in the Family Division, and the Court of Appeal in the
present case were wrong to approve and apply that decision.
In Tommey v. Tommey [1983] Fam. 15, a wife applied to
set aside a consent order under which she was to transfer to the
husband her half-share in the former matrimonial home and the
husband was to pay to her £8,000 in full and final settlement of
all her claims for financial provision for herself. The main ground
on which she claimed to have the consent order set aside was
that, in the negotiations leading up to the agreement pursuant to
which the consent order was made, the husband had exercised
undue influence on the wife. Balcombe J. held, as a matter of
law, that undue influence, even if proved, was not a good ground
for setting aside a consent order. The question of the effect of
undue influence in circumstances of this kind does not arise on
this appeal, and, that being so, it would be undesirable to express
even a provisional opinion upon it. I think it right to say,
however, that I am not persuaded that Balcombe J.’s decision on
the question was necessarily correct.
The wife in that case, however, had relied on another
ground for setting aside the consent order, namely that, because
the husband had filed no affidavit, the judge had made the consent
order without having full knowledge of all the material facts.
With regard to this contention Balcombe J. said, at p. 21:
“Nor is there substance in another ground, viz. ignorance of
relevant facts on the part of the judge. A judge who is
asked to make a consent order cannot be compelled to do
so: he is no mere rubber stamp. If he thinks there are
matters about which he needs to be more fully informed
before he makes the order, he is entitled to make such
inquiries and require such evidence to be put before him as
he considers necessary. But, per contra, he is under no
obligation to make inquiries or require evidence. He is
entitled to assume that parties of full age and capacity
know what is in their own best interests, more especially
when they are represented before him by counsel or
solicitors. The fact that he was not told facts which, had
– 12 –
he known them, might have affected his decision to make a
consent order, cannot of itself be a ground for impeaching
the order. Accordingly, the wife is not entitled on this
ground to have the order of 18 February 1975 set aside.”
Having regard to the practice with regard to the making of
consent orders existing at the time when this judgment of
Balcombe J. was given, there is a great deal of practical common
sense in the paragraph from that judgment set out above. But, if
Balcombe J. was saying, as I think that he was by necessary
implication, that, in the case of consent orders made without
affidavits having been filed, between parties of full age and
capacity, and represented by counsel or solicitors, the principles of
full and frank disclosure of all material facts was not applicable, I
cannot agree with that view. For the reasons of principle which I
discussed earlier, the requirement of full and frank disclosure
always exists in proceedings for financial provision and other
ancillary relief. It is, as I have sought to stress, a requirement
founded on the terms of section 25(1) of the Act of 1973, and, for
reasons of public policy, it is not open to parties, whether
represented by lawyers or not, to disregard, or to contract out of,
such requirement. To the extent which I have indicated, I am of
opinion that, in Tommey v. Tommey, Balcombe J. erred in law.
In Robinson v. Robinson (Disclosure) (1983) 4 F.L.R. 102 the
requirement of full and frank disclosure in relation to a consent
order was forcefully upheld by the Court of Appeal. In that case
the parties had been divorced in 1973, at which time the husband
was ordered to make periodical payments for the wife and
children. The amount of those payments was increased by the
Court of Appeal later in the same year. In 1976, on an
application by the husband for the periodical payments to the wife
herself to be suspended or reduced, the judge discharged the order
for such payments in her favour, and made an order, to which the
wife consented, under which she accepted a lump sum in full and
final settlement of all her claims against the husband. In 1983
the wife applied to a judge at first instance for the two previous
orders of 1973 and 1976 to be set aside on the ground that the
husband had, on each occasion, misrepresented or inadequately
represented his financial position. The judge having dismissed her
claim, the wife brought an appeal to the Court of Appeal. That
court allowed the appeal and set aside both orders. Its reasons
for doing so appear from the headnote of the report. The first
ground was that, in proceedings for ancillary relief, there was a
duty, both under the rules and by authority, on the parties to
make full and frank disclosure of their property and financial
resources; accordingly the power to set aside orders was not
limited to cases of fraud or mistake, but extended to cases of
material non-disclosure; where it could be said that, on the true
facts, the orders should not have been made, then the orders could
be set aside. The second ground was that, although intensive
research might have revealed to the wife the husband’s financial
position, it was clear that both in 1973, and in the proceedings
leading up to his application in 1976, the husband had not provided
the wife with the full and frank disclosure to which she was
entitled; accordingly the orders would be set aside, so that the
parties could either settle their differences, or go to court for a
settlement based on the position in 1982.
– 13 –
The principal judgment setting out these reasons for allowing
the appeal was that of Templeman L.J., as he then was. Ormrod
L.J. and Wood J. agreed with his judgment. The former said, at
pp. 113-114 of the report:
“There is no doubt that both the Court of Appeal and the
judge at first instance have jurisdiction in the situation with
which we are faced in this case, where the application is to
set aside a final order. Lord Diplock said so in de Lasala
v. de Lasala [1980] AC 546, 561: ‘Where a party to an
action who seeks to challenge, on the ground that it was
obtained by fraud or mistake, a judgment or order that
finally disposes of the issues raised between the parties, the
only ways of doing it that are open to him are by appeal
from the judgment or order to a higher court or by bringing
a fresh action to set it aside.’ There are many references
in the books to separate actions to set aside a judgment on
the ground of fraud. In the Family Division, as has been
said many times, this power to set aside final orders is not
limited to cases when fraud or mistake can be alleged. It
extends, and has always extended, to cases of material non-
disclosure … A distinction has to be drawn between the
restrictions imposed by the Matrimonial Causes Act 1973 on
varying lump sum orders or property adjustment orders
which cannot be varied, and the power to set aside an order
which has been obtained by fraud or mistake, or by material
non-disclosure. The essence of the distinction is that the
power to vary usually reflects changes of circumstances
subsequent to the date of the order, whereas the power to
set aside arises where there has been fraud, mistake, or
material non-disclosure as to the facts at the time the
order was made [my emphasis]. From the point of view of
convenience, there is a lot to be said for proceedings of
this kind taking place before a judge at first instance,
because there will usually be serious and often difficult
issues of fact to be determined before the power to set
aside can be exercised. These can be determined more
easily, as a rule, by a judge at first instance. Moreover, he
can go on to make the appropriate order which we cannot
do in this court. I think that these proceedings should
normally be started before a judge at first instance,
although there may be special circumstances which make it
better to proceed by way of appeal.”
Then, after referring to the well known principle of the
“clean break” discussed extensively by my noble and learned friend,
Lord Scarman, in Minton v. Minton [1979] A.C. 593, Ormrod L.J.
continued:
“It is essential in these cases that the court retains its
power to protect both parties against injustice which may
arise from failure to comply with their obligations to
disclose. In other words there is a lot to be said for the
principle of the clean break but I have no doubt that Lord
Scarman, when he used the phrase, had in mind that the
break should be clean in more senses than one.”
My Lords, this decision of the Court of Appeal in Robinson
v. Robinson fully supports, on the basis of long-established
– 14 –
authority, the opinion with regard to the duty on parties to make
full and frank disclosure of material matters before an order for
ancillary relief, including a consent order, is made under sections
23, 24 and 25(1) of the Act of 1973, at which I arrived earlier, on
the basis of principle, by an examination of the terms of section
25(1).
Both on principle and on authority, therefore, I am of
opinion that the wife was in this case under a duty to disclose the
fact of her engagement as soon as it took place, and that her
failure to do so is relevant to the validity of the consent order. I
am further of the opinion that, since the fact which was not
disclosed undermined, as it were, the whole basis on which the
consent order was agreed, that order should be set aside and the
proceedings for financial provision and property adjustment
remitted to the Family Division of the High Court for rehearing
by a judge of that division. I would, therefore, allow the appeal
and remit the case in the manner indicated.
My Lords, there are several subsidiary matters with which I
consider that it is appropriate for me to deal before parting from
this appeal.
The first matter is that, following the decision of the Court
of Appeal in this case, the President of the Family Division, Sir
John Arnold, with the concurrence of my noble and learned friend,
the Lord Chancellor, issued a practice direction dated 13 April
1984 (Practice Direction (Family Division: Financial Statement)
[1984] 1 W.L.R. 674) relating to the procedure to be followed in
applications for financial provision or property adjustment. That
practice direction provided, inter alia, as follows:
“The decision of the Court of Appeal in Jenkins v. Livesey
(formerly Jenkins) … is a reminder that in all cases where
application is made for a financial provision or property
adjustment order the court is required to have before it an
agreed statement of the general nature of the means of
each party signed by the parties or their solicitors. If
affidavits of means have been filed it will be sufficient if
the statement is in the form of a certificate that there has
been no change of substance since the date of the affidavit
or if there has, what changes there have been. If no such
evidence has been filed the statement should include a
summary of the amount or value of the capital and income
resources of each of the spouses . . . and any special
features which require to be considered under section 25 of
the Matrimonial Causes Act 1973. . .”
This practice direction was clearly a step in the right
direction so far as the making of consent orders for financial
provision or property adjustment is concerned.
The second matter is that, by section 7 of the Act of 1984
a new section 33A has been inserted to follow section 33 in the
Act of 1973. This new section deals expressly with consent orders
for financial relief, an expression which, by the terms of section
37 of the Act of 1973, includes, inter alia, both financial provision
and property adjustment. It provides:
– 15 –
“(i) Notwithstanding anything in the preceding provisions of
this Part of the Act, on an application for a consent order
for financial relief, the court may, unless it has reason to
think that there are other circumstances into which it ought
to inquire, make an order in the terms agreed on the basis
only of the prescribed information furnished with the
application. (2) … (3) In this section – … ‘prescribed’
means prescribed by rules of court.”
Relevant rules of court have been made and are to be found
in the Matrimonial Causes (Amendment) Rules 1984 (S.1 1984 No.
1511 (L.15)). Rule 8 of those rules inserts after rule 76 of the
Matrimonial Causes Rules 1977 a new rule 76A, dealing with the
procedure to be followed on applications for consent orders for
financial relief. The procedure so laid down includes the lodging
of a statement containing the kind of information which the court
needs to have before making an order in accordance with the
revised criteria contained in the new section 25, substituted by
section 3 of the Act of 1984 for the original section 25 of the
Act of 1973.
These further provisions, by statute and rules of court,
represent a further step in the right direction, following on the
Practice Direction referred to above. It must not be thought,
however, that these further provisions alter in any way at all the
basic principle of the need for full and frank disclosure by the
parties before a consent order is made.
The third matter relates to the form of the consent order
made in this case. I said earlier that its form was open to a
number of criticisms, and it is right that I should now indicate
what these criticisms are. When a consent order is drafted it is
essential that all its terms should come clearly within the court’s
powers conferred on it by sections 23 and 24 of the Act of 1973.
In the present case there are several terms which are not within
those powers. These are paragraph 2, which directs that the wife
shall be solely responsible, after the transfer to her of the
husband’s half-share in the matrimonial home, for the mortgage on
it and all other outgoings relating to it; and paragraphs 4, 5 and
6, which direct that the husband and the wife are to be solely
responsible for certain specified bank overdrafts and loan accounts.
There is nothing in sections 23 or 24 of the Act of 1973 which
directly empowers the court to make orders of these kinds. That
being so, the proper procedure for incorporating the obligations
concerned into a consent order is by formulating them as
undertakings given to the court. Such undertakings are, needless
to say, enforceable as effectively as direct orders.
The fourth and final matter arises out of certain
observations made by Sir John Arnold P. in the present case with
regard to the judgment of a two-judge Court of Appeal, consisting
of Ormrod L.J. and myself, in an unreported case, Wells v. Wells,
decided on 18 June 1980. Sir John Arnold P., on p. 6 of the
transcript, expressed the view that this case was decided per
incuriam and should not be followed. Since I gave the only
judgment in the case, with which Ormrod L.J. agreed, I feel some
diffidence in questioning the learned President’s observations.
Despite such diffidence, however, I think that I should, in defence
both of Ormrod L.J. and of myself, express my firm view that
– 16 –
Wells v. Wells was in no way decided per incuriam. The history
of the case is simple. On 2 October 1979 Booth J. had made an
order in contested proceedings for financial provision and property
adjustment. In December 1979 the wife began to associate with
another man whom she had known before; later she began living
with him; and on 19 April 1980 she married him. Four days
earlier, on 15 April 1980, the husband applied to a division of the
Court of Appeal, in which to the best of my recollection I myself
was not sitting, for leave to appeal out of time from the order of
Booth J. dated 2 October 1979, on the ground of a radical change
of circumstances occurring after that order had been made. Leave
to appeal out of time was given, and later the substantive appeal
came before a different division of the Court of Appeal, consisting
of Ormrod L.J. and myself. It was apparent that the whole basis
on which Booth J. had made her order had been falsified by events
occurring within about three months of the date on which it had
been made. Ormrod L.J. and I accordingly took the view that, in
order that justice should be done, Booth J.’s order, based on a
state of affairs falsified by later events, should be set aside, and
that a different order, based on the true state of affairs by then
existing, should be substituted for it. I can see that two views
might be taken of the prior decision to give the husband leave to
appeal out of time at all. That decision having been made,
however, I cannot see that the court hearing the substantive
appeal could have done otherwise than allow it and substitute a
just order for what, in the events which had since occurred, was
plainly an unjust order.
My Lords, I hope that I have not taken up too much time
with these subsidiary matters, since they do not bear directly on
the decision of this appeal. As to that, I have indicated earlier
the order which I have concluded should be made on the appeal,
and my reasons for reaching that conclusion.
I would end with an emphatic word of warning. It is not
every failure of frank and full disclosure which would justify a
court in setting aside an order of the kind concerned in this
appeal. On the contrary, it will only be in cases when the
absence of full and frank disclosure has led to the court making,
either in contested proceedings or by consent, an order which is
substantially different from the order which it would have made if
such disclosure had taken place that a case for setting aside can
possibly be made good. Parties who apply to set aside orders on
the ground of failure to disclose some relatively minor matter or
matters, the disclosure of which would not have made any
substantial difference to the order which the court would have
made or approved, are likely to find their applications being
summarily dismissed, with costs against them, or, if they are
legally aided, against the legal aid fund.
– 17 –
Source: https://www.bailii.org/
