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FINANCIAL REMEDIES: S v S (Non-Disclosure) [2013] EWHC 991 (Fam)

Date:9 MAY 2013
Law Reporter

(Family Division, Sir Hugh Bennett, 29 April 2013)

The husband and wife were married for 17 years and had three children together. When the marriage broke down financial proceedings were settled leaving the wife with £10.355m of cash and properties and the husband with £5.64m of cash and properties. In addition the husband agreed to pay the wife a deferred lump sum once his shares in the company were sold. The draft order was approved by the judge but was never sealed.

The wife now sought to reopen financial remedy proceedings on the basis of the husband's material non-disclosure. While there was no dispute about the 50/50 split of the matrimonial assets, the main issue had been the husband's shareholding in the company. The husband sought to retain his shareholding on the basis that following the separation the company shares constituted non-matrimonial assets. In the proceedings in 2012 he claimed to be readying the company for flotation on the stock exchange but claimed that this was something which could happen in 3 to 7 years' time.

Following the settlement the wife became aware that three bankers had been instructed to prepare an Initial Public Offering for 2013 on the NASDAQ. Suggested valuations were given of between £468m and £631m.

It was clear that the husband's evidence had been plainly misleading and he was planning an IPO during 2012. The entire emphasis in the company planning was for an IPO and not any other option contended by the husband. When placed against the documents now disclosed the husband's evidence could only be categorised as dishonest. The husband had chosen to suppress the documents now available in an attempt to lessen his exposure to the court's discretionary powers.

In assessing whether full disclosure would have impacted on the judge's approval of the award, it was now apparent that although much work had been done on preparation for the IPO, much work remained to be done. In such fluid circumstances the only course would have been to adjourn proceedings to wait and see what happened. As it happened an IPO had still not been affected and as the evidence stood there was still no imminent prospect of an IPO.

The wife's application was dismissed. Any order that would have been made following full disclosure would not have been substantially different from that contained in the unsealed order. The husband while guilty of non-disclosure, was not guilty of material non-disclosure. The previous order would be sealed.