I’m sure I’ve said it here before, but I’ll say it again: financial remedy orders are intended to be final. A party is not usually entitled to have a ‘second bite of the cherry’. Accordingly, unless there are grounds for an appeal, the order will usually bring the financial remedy proceedings to a conclusion, save for any action necessary to enforce the order. Anyone who is aggrieved at the contents of a financial remedies order will therefore find it very hard to have the order set aside, and that is especially so if they consented to the terms of the order.
That, however, is what the wife sought to do in the recent case W v H.
The relevant facts of the case (for the purpose of this post – I am simplifying matters to keep the post to a reasonable length) were as follows. The parties were married in 2008 and they have two children. They separated in about July 2013. The husband issued divorce proceedings in that month, and the wife issued her own petition in August 2013. Financial remedy proceedings ensued, agreement was reached, and a consent order was drawn up, setting out the terms of the agreement. The order was approved by the court in May 2015. It provided, amongst other things, for the wife to receive a lump sum of £1.6 million, plus maintenance. The divorce was then finalised, in July 2015.
In September 2018 the wife applied to set aside the consent order, giving four grounds for the application:
- That she had been subjected to undue influence by the husband;
- That she had been subjected to duress by the husband;
- That there had been fraudulent non-disclosure on the part of the husband; and
- That she had not received proper legal advice on the terms of the agreement.
The application was heard by District Judge Duddridge in the Central Family Court in London. He dealt with the wife’s grounds as follows.
As to point 4, he explained that bad legal advice can never be a ground for setting aside a final financial remedies order, whether made by consent or otherwise. This was because “the interest in finality of decisions outweighed the risk of injustice to a party who had received defective advice”, and also because the consent order would have been approved by the court. The wife’s complaint, however, was not that she had received bad legal advice, but rather that she received no advice about the fairness of the consent order. This was not accepted as a good ground by District Judge Duddridge: the wife was receiving advice from a solicitor at the time of the consent order, and the point about bad advice applied equally to incomplete or insufficient legal advice.
As to points I and 2, District Judge Duddridge found that the wife’s allegations (which I will not detail here) could not amount to duress. They were capable of amounting to undue influence, but did not do so, as her actions revealed that she was acting under her own agency, and were inconsistent with her case that she was compelled by any threats by the husband to agree to the terms he presented her with.
Which leaves point 3, non-disclosure by the husband. Here, District Judge Duddridge found that, before the consent order was approved, the wife was actually aware of most of the matters she claimed that the husband had failed to disclose, and that other matters were of such “doubtful materiality” that he considered that the wife would not succeed in having the consent order set aside on that basis.
There was also the issue of the wife’s delay in making her application. In relation to this, District Judge Duddridge said that he had to consider whether there was a good explanation for the delay. In particular, if the wife was subjected to undue influence or duress, her obligation to act promptly had to be measured by reference to the point in time when she became free from that undue influence or duress. He found that this was likely to be by July 2017, when she sought advice about the implementation of the consent order, but was at the latest by February 2018, almost seven months before she made her application, when she instructed new solicitors. That delay was unexplained and inordinate, and would mean that the application should be struck out, even if, contrary to District Judge Duddridge’s findings as set out above, it had any real prospect of success.
Accordingly, the application was dismissed.
The full judgment can be read here.
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Author: John Bolch