(Family Division; Charles J; 23 June 2008)
At the FDR a consent order was made that provided for the matrimonial home to be transferred to the wife, with a charge back of 24% of the gross proceeds of sale to the husband, plus periodical payments to the wife. The wife sought to have the consent order set aside on the basis of the husband's failure to disclose that he was, at the time, engaged in negotiating a new employment contract with potential new employers. When the order was made the size of the bonus that the husband was to receive from his existing employment was not yet known, although it had already been clear at that stage that the husband was on a steep upward income curve. The wife argued that had the job negotiations been disclosed to her she would not have agreed to the husband retaining a charge over the matrimonial home.
There had been a breach of the duty of full and frank disclosure, however the disclosure of job negotiations that were still at an uncertain stage would not have made any difference to the terms of the order. The husband had not been under a duty to disclose the real prospect of a significantly larger bonus unless either his employer had provided the husband with information as to the actual or likely amount of the bonus or the husband had had other specific information that would inform thinking as to the likely rise in his bonus. The dual uncertainties concerning the bonus and the uncertainties inherent in job negotiations meant that husband's prospects were effectively no different in either case. The wife had not established that had the negotiations been disclosed the FDR would have been adjourned to await the outcome. Professionals who had advised on an order incorporating agreed terms should give careful consideration to whether they should act on a claim to set that order aside.