Jenkins v Livesey (formerly Jenkins) (Livesey (formerly Jenkins) v Jenkins)

Parties seeking financial provision or property adjustment following divorce owe the court and each other a continuing duty of full and frank disclosure of all material facts. The duty applies equally to contested proceedings and consent orders. It continues after agreement until the court makes its order.

An order may be set aside for material non-disclosure where the information would have led the court to make a substantially different order. Minor or immaterial omissions do not suffice. The duty arises from the court’s statutory responsibility under the Matrimonial Causes Act 1973 and cannot be excluded by agreement. Although clean-break orders should be encouraged and upheld, their justice depends upon complete and current disclosure.

The divorced parties agreed that the husband would transfer his half-share in the matrimonial home to the wife. In return, the wife’s claims for financial provision would be dismissed. After agreement but before the consent order was made, the wife became engaged to another man. She disclosed the engagement neither to the husband nor to either firm of solicitors. She remarried shortly after the order, when section 28 of the Matrimonial Causes Act 1973 would in any event have ended her entitlement to financial provision.

A circuit judge permitted the husband to appeal out of time but declined to set aside the order because he considered himself bound by Wales v Wadham [1977] 1 W.L.R. 199. The Court of Appeal dismissed the husband’s appeal. The central questions before the House were whether the duty of disclosure continued between agreement and the making of a consent order, and whether material breach of that duty entitled the other spouse to have the order set aside.

1. Disposition. Lord Brandon of Oakbrook delivered the leading speech. Lord Hailsham LC, Lord Scarman, Lord Keith of Kinkel and Lord Bridge agreed with it. The House unanimously allowed the appeal, set aside the Court of Appeal’s order and remitted the financial provision and property adjustment proceedings to the Family Division for rehearing.

2. Statutory foundation of disclosure. Per Lord Brandon, the powers to grant financial provision and property adjustment were statutory powers conferred by sections 23 and 24 of the Matrimonial Causes Act 1973. Section 25(1) required the court to consider all the circumstances. The parties therefore had to provide correct, complete and current information. This created a duty to the court to make full and frank disclosure of all material facts to the other party and the court (pp 7–9).

3. The duty applied equally to contested proceedings and negotiations leading to a consent order. It continued after the parties had reached agreement and until the court made its order. Because the legal effect of the arrangement derived from the order rather than the antecedent compromise, the manner in which the agreement had been negotiated could not exclude the statutory duty. The duty was founded on public policy and could not be contracted out of.

4. The wife’s engagement was a material circumstance bearing directly on the statutory criteria and on section 28. Disclosure would have caused the husband to withdraw his consent because the impending remarriage destroyed the consideration underlying the agreed transfer. The non-disclosure therefore undermined the whole basis of the order and made it liable to be set aside (pp 9 and 14).

5. Wales v Wadham [1977] 1 W.L.R. 199 was overruled on its denial of the disclosure duty. The contrary implication in Tommey v Tommey [1983] Fam. 15 was disapproved. Robinson v Robinson (Disclosure) (1983) 4 F.L.R. 102 was approved as supporting both the disclosure obligation and the power to set aside an order for material non-disclosure.

6. Materiality threshold. Per Lord Brandon, supported expressly by Lord Scarman, not every failure of disclosure warrants setting aside. Relief is available only where full disclosure would have produced an order substantially different from that actually made. Applications based on minor omissions may be summarily dismissed with costs. Clean-break orders remain important and should not lightly be disturbed.

7. Lord Brandon added that every operative term of a consent order must fall within sections 23 and 24. Obligations outside those powers should be expressed as undertakings to the court. The later statutory and procedural provisions governing consent orders did not alter the underlying duty of full and frank disclosure.

1. House of Lords: In Jenkins v Livesey (formerly Jenkins) (Livesey (formerly Jenkins) v Jenkins) [1984] UKHL 3, the House unanimously allowed the husband’s appeal, set aside the Court of Appeal’s order save as to legal aid taxation, and remitted the financial proceedings to the Family Division for rehearing.

2. Court of Appeal: On 21 December 1983, Sir John Arnold P and Heilbron J dismissed the husband’s appeal from Judge Cox but granted leave to appeal to the House of Lords.

3. Plymouth County Court: On 5 May 1983, Judge Cox permitted an appeal out of time from the registrar’s consent order. He declined to set the order aside because he considered himself bound by Wales v Wadham [1977] 1 W.L.R. 199.

4. Plymouth County Court: On 2 September 1982, Mr Registrar Carder made the consent order without conducting further inquiries.