(Court of Appeal, Elias, Kitchin, King LJJ, 14 October 2016)
Financial remedies – Civil partnership – Non-disclosure – Consent order – Application set aside summarily dismissed
The woman’s appeal from a decision refusing permission to appeal a consent order on the basis of non-disclosure was allowed.
The two women were in a same-sex relationship for 18 years and a civil partnership for just under one year of that period. During the relationship one of the women, now deceased, was the breadwinner and financed the luxurious lifestyle which the couple enjoyed.
Following their separation the deceased made a financial offer to the other woman but it was refused. Maintenance pending suit of £1,250 pm was awarded but no provision was made for legal fees. An agreement was reached that the deceased would pay a lump sum of £162,000 and periodical payments of £18,050pa for 2 years. The woman was acting in person and accepted that she could seek independent legal advice. The deceased declared her gross income as £55,312 pa and net assets of £766,000 with a pension fund of £285,000. A consent order was made which included the provision that after the termination of the periodical payments in the event of the deceased’s death, no claim would be made of her estate.
Subsequently the deceased signed off company accounts showing shareholder funds of £5.5m and her annual income of £150,000. She died in 2013.
The woman applied to set aside the consent order on the basis of material non-disclosure. The judge at first instance dealing with the matter at an abbreviated hearing found that the application was doomed to failure and that the non-disclosure had not been material.The appeal was allowed and the case would be remitted for reconsideration. The decision below could properly be characterised as a summary judgment for which the judge had no jurisdiction under the rules. He had also been wrong not to make findings of fact as to the alleged non-disclosure. Further he failed to address the issue of materiality against a finding of whether the non-disclosure was deliberate or inadvertent. He had peremptorily dismissed any question of the non-disclosure being material on the basis that the woman had agreed to the order knowing that there had been non-disclosure.