No Variation of Unsealed Consent Order Despite Non-disclosure by Husband

A wife’s application to have the financial remedy proceedings of a ‘big money’ case re-opened has been rejected by the family division of the High Court.

The remedy hearing initially took place in July 2012 and, at its conclusion, the heads of agreement and consent order had been approved but were not sealed by the court.

In her application, the wife alleged material non-disclosure by the husband. The husband was found to be guilty of non-disclosure, but that it was not considered material.

Background to S v S [2013]

Married in 1993, the parties separated in 2010 after having 3 children. It was decided at the final hearing in July 2012 that the matrimonial assets would be divided equally, but an issue arose in how the husband’s shares in “X Co” would be shared.

”X Co” is a valuable company of which the husband is founder and owner of the majority of the issued share capital. The terms of the settlement were then agreed. The wife was to receive £10.355m of cash and properties, with the husband retaining £5.64m. It was also agreed the husband would pay the wife 30% of the proceeds of any disposal of shares in “X Co”, after capital gains tax and the costs of sale had been deducted.

A trust of £4m was to be set up for one of the children as well as another payment of £1.7m to be made to the wife.

Non-disclosure

From January 2012 to August 2012, “X Co” was in the process of planning a stock market flotation, for which the company was valued between $750m - $1bn by media reports in July and August 2012. The husband had previously given evidence that an IPO of “X Co”, whilst possible, wouldn’t happen before 3, 5 or 7 years, and that “there’s nothing on the cards today”.

Subsequently, when the wife found out, she made her application to court. The husband maintained that he had given full and frank disclosure, and/or that the non-disclosure was not material. He later dismissed the media’s valuations of “X Co” as ‘pure conjecture’.

Judgement

The court found the husband to have been dishonest in not disclosing details of the planned IPO, which could have had a significant impact on how the case proceeded and the value of the settlement.

On the fact that the IPO did not take place, the courts decided that the position and settlement agreed would not have been substantially different, had full disclosure of the IPO been given. On this basis, the non-disclosure was deemed to be not material.

Consequently, the wife’s application was dismissed and the original draft order sealed.

If you would like to discuss the implications of this case or you need advice in relation to other family law issues please contact Melanie Bataillard-Samuel via e-mail MBataillard-Samuel@rollingsons.co.uk or by telephone on 0207 611 4848.