Livesey v Jenkins [1984] UKHL 3

House of Lords
Between
LiveseyAppellantJenkinsRespondent
Before
Lord Hailsham of St
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 isfurther 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

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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

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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.

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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.

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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

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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

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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:

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"(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

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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.

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