I v I

Parties to ancillary relief proceedings owe a continuing duty of full and frank disclosure of material facts, documents and information relevant to the issues before the court. The duty includes information which may reduce uncertainty about future income, earning capacity or asset values, or may prompt a different approach to settlement. Employment offers and sufficiently advanced negotiations affecting income will generally fall within the duty, although highly speculative information may not. If disclosure is breached, an order may be set aside only where the breach led to an order substantially different from that which the court would have made with proper disclosure. The comparison is made as at the date of the order, taking account of uncertainties then existing and not hindsight.

The wife applied to set aside a consent ancillary relief order made at an FDR on 20 July 2006. She alleged that the husband had failed to disclose advanced negotiations for substantially better employment and relied on non-disclosure and, initially, a supervening event. The supervening-event argument was abandoned.

The husband had not entered into a contract or agreed terms when the order was made, but negotiations were at an advanced stage and a formal offer was expected imminently. The central issues were whether the negotiations fell within the duty of full and frank disclosure and, if so, whether disclosure would have resulted in a substantially different order.

1. Application dismissed. The husband had breached his continuing duty of full and frank disclosure by failing to disclose the advanced negotiations concerning a possible move to BB. The information could have informed assessment of his future income, earning capacity and the parties’ settlement decisions.
2. The duty is assessed by reference to material facts, documents and information relevant to the issues arising under the Matrimonial Causes Act 1973. It extends to information which may remove uncertainty about future income or asset value, or inform assessment of income, earning capacity or assets. Employment offers and negotiations affecting income should generally be disclosed. Information which is too speculative or unlikely to affect the other party’s thinking may fall outside the duty. Where there is doubt, disclosure should be made.
3. The phrase material non-disclosure in the authorities concerns the separate question whether the breach caused the court to make an order substantially different from the order it would have made with full disclosure. The court adopted the objective or court-centred approach in Jenkins v Livesey [1985] 1 AC 424. The assessment is made on the date when the order was made. Later events may be considered, but cannot remove uncertainties existing on that date.
4. Although disclosure would have revealed a real and imminent possibility of a move and higher guaranteed remuneration, the move remained uncertain and the likely remuneration was within a range comparable with the husband’s expected increase at AA. The existing order fairly divided the matrimonial assets and provided for future earning capacity through variable periodical payments. Disclosure therefore would not have led to a substantially different order.
5. The court did not determine whether a consent order could be set aside because disclosure would have prevented any agreement being put before the court. That possible subjective or agreement-based issue had not been properly argued or evidenced.