The Court of Appeal (CoA) was asked whether the Lower Court should have set a judgement aside based on inaccurate evidence given by the wife and her failure to comply with her duty to give full and frank disclosure.
Background:
The husband and wife met in Singapore in 2005 and were married in 2006. They have one child and have lived in Singapore in an apartment purchased by the wife in 2002. The husband was then studying for a Master’s degree and thereafter a PhD while the wife was working full-time. In 2013, the family moved to England where the husband had been appointed lecturer. In 2016, the couple jointly acquired a property in England in both their names, which was funded through a direct mortgage as well as a mortgage on the Singapore property.
In 2019, the marriage came to an end, although the divorce petition was only issued in 2021. The District Judge tried to sort the finances insofar as possible, based on the observation that both parties had similar housing needs as the couple had assets in different countries including Singapore, Malaysia and Nigeria.
In the appeal, the husband argued that a significant error affected the final financial remedy order due to a misrepresentation regarding the wife’s Central Provident Fund (CPF) account in Singapore – a mandatory saving scheme. Indeed, the wife had represented that these funds were inaccessible until she reached the age of 65 and she was only 56 when the proceedings started. However, it emerged that the funds were in fact accessible upon the sale of her Singapore property.
Decision:
The CoA allowed the appeal on two grounds, ruling that the District Judge's order must be set aside and the matter remitted for rehearing. The Court reaffirmed the duty of full and frank disclosure as set out in Livesey v. Jenkins. A failure to comply with the duty under Section 25(2)(a) of the Matrimonial Causes Act 1973 could thus render a financial order unfair and open to challenge.
The Court ruled that the husband had presented new evidence of relevance to the appeal which contradicted the wife’s earlier claims and met the Ladd v. Marshall test. The courts have the discretion to admit new evidence if such evidence could not have been obtained with reasonable diligence at the time of the original hearing and could potentially influence the outcome of the case and be credible. The Judge’s refusal to admit new evidence was deemed inappropriate as the District Judge might have reached different conclusions if they had accurate information about the CPF account.
Indeed, with the sale of the Singapore apartment, the wife would have had available to her a sum in the region of £325,000.
The Court also reiterated that the burden of proof regarding the materiality of misrepresentation lies with the party making the misrepresentation, not the victim. Otherwise, ‘This would be to reverse the parties' respective obligations.’
Implications:
This case clarifies the conditions for successfully appealing financial remedy orders on the grounds of mistake or misrepresentation. Clients must provide comprehensive financial disclosure from the outset, as any omission could be a costly mistake resulting in appeals.
Only substantial errors that could adversely influence the outcome have a chance of success on appeal and the error must affect the fairness of the financial order. The test to include new evidence is quite high, but not impossible.