BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Livesey v Jenkins [1984] UKHL 3 (13 December 1984)
URL: http://www.bailii.org/uk/cases/UKHL/1984/3.html
Cite as: [1985] AC 424, [1985] 1 AC 424, [1984] UKHL 3, [1985] FLR 813

[New search] [Printable version] [Buy ICLR report: [1985] 1 AC 424] [Help]


JISCBAILII_CASE_FAMILY

    Parliamentary Archives,
    HL/PO/JU/18/244


    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 -


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKHL/1984/3.html