Jenkins v Livesey (formerly Jenkins)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Hailsham of St. Marylebone L.C.,Lord Scarman,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brandon of Oakbrook
Judgment Date13 December 1984
Judgment citation (vLex)[1984] UKHL J1213-2

[1984] UKHL J1213-2

House of Lords

Lord Chancellor

Lord Scarman

Lord Keith of Kinkel

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Livesey (Formerly Jenkins)
(Respondent)
and
Jenkins (A.P.)
(Appellant)
(England)
Lord Hailsham of St. Marylebone L.C.

My Lords,

1

I have had the advantage of reading in draft the speech about to be delivered by my noble and learned friend Lord Brandon of Oakbrook. I agree with every word of it and am in consequence of the opinion that this appeal must be allowed, the order set aside and the proceedings remitted for rehearing by a judge of the Family Division in the form suggested by my noble and learned friend,

2

There is, therefore, nothing useful that I can add on the merits of the appeal. Since, however, the advisers to the respondent clearly attached importance to my doing so I wish to add that they acted in perfect good faith throughout, since, at the material time, that is, at the time the consent order was perfected, they were not aware of the essential fact of which there had been non-disclosure.

3

I would also wish to add that though, for the reasons given by my noble and learned friend, I do not agree with it, I fully understand the position of the respondent. A former wife is naturally reticent about any plan she may have to remarry, and I do not think she was fully aware (though she should have been) of the vital nature of the information she was withholding from the other side and from the court.

4

I would also wish to underscore the warning with which my noble and learned friend is concluding his speech. Consent orders which effect a clean break between former spouses are, when there has been full relevant disclosure, much to be encouraged, and, properly negotiated, greatly reduce the pain and trauma of divorce. They are, therefore, not lightly to be overthrown.

Lord Scarman

My Lords,

5

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives I would allow the appeal. I agree that the consent order made on 2 September 1982 should be set aside and the proceedings for financial provision and property adjustment remitted to the Family Division of the High Court for rehearing by a judge of that division.

6

Before leaving the case I wish to express my firm support for the emphatic word of warning with which my noble and learned friend concludes his speech. The principle of the "clean break" as formulated in Minton v. Minton [1979] A.C. 593, 601 (Viscount Dilhorne) and 608 (myself) retains its place of importance in the law. The justice of the clean break depends upon the full and frank disclosure of all material matters by the parties. But orders, whether made by consent or in proceedings which are contested, are not to be set aside on the ground of non-disclosure if the disclosure would not have made any substantial difference to the order which the court would have made.

Lord Keith of Kinkel

My Lords,

7

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons he gives I too would allow the appeal.

Lord Bridge of Harwich

My Lords,

8

For the reasons given in the speech of my noble and learned friend Lord Brandon of Oakbrook, with which I fully agree, I would allow the appeal and remit the proceedings for rehearing by a judge of the Family Division of the High Court.

Lord Brandon of Oakbrook

My Lords,

9

This appeal arises in the field of family law and concerns the making by the court of consent orders for financial provision and property adjustment following a divorce.

10

On the facts of the present case two important questions of principle require to be decided by your Lordships. The first question is this. Where a compromise in respect of claims for financial provision and property adjustment made by either or both of the former spouses has been reached by two firms of solicitors acting on their respective behalf, with the intention that the terms of such compromise shall subsequently be given effect to by a consent order of the court, is each of the former spouses under a remaining duty to disclose to the other, or to the other's solicitors, the occurrence of a material change in his or her situation, which has taken place after the compromise has been reached, but before effect has been given to it by the making of a consent order by the court? The second question is this. Assuming that the remaining duty referred to above exists, and is not complied with by one of the two former spouses, so that a consent order is made by the court without such material change having been taken into account, is the other former spouse entitled, in proceedings before a judge of first instance, to have the order so made set aside?

11

As will appear, a circuit judge and the Court of Appeal have held, in effect, in the present case, in favour of a former wife and against a former husband, that there is no remaining duty of disclosure of the kind mentioned in the first question above; and that, since there is no such duty, the second question referred to above does not arise. The former husband now brings a further appeal with regard to these matters, with the leave of the Court of Appeal, to your Lordships' House.

12

The appellant is David Henry Jenkins and the respondent is Beryl Livesey (formerly Jenkins). In what follows I shall for convenience refer to them as "the husband" and "the wife" respectively, despite the fact that, by reason of the divorce which I shall mention shortly, they are no longer married to each other.

13

The husband and the wife were married on 20 February 1957. There are two children of the family, both boys: Matthew, now aged 15, and Nicholas, now aged 13. Prior to 15 October 1981 the husband and the wife, with their two children, were living in a house near Liskeard in Cornwall. That house, to which I shall refer from now on as "the matrimonial home," was owned jointly by the husband and the wife, subject to a mortgage on it. On 15 October 1981, following marital disagreements apparently arising from the husband's association with another woman, the husband left the matrimonial home, since when he has never returned to live in it.

14

Before the husband left both he and the wife had consulted different firms of solicitors about their marital troubles. As a result an exchange of letters between these two firms, relating to the affairs of the husband and the wife and the two children, had begun on 9 September 1981 and continued for a long time afterwards. In the course of that correspondence the two firms of solicitors succeeded in reaching agreement on a number of matters on behalf of their respective clients.

15

The first agreement was that, since the marriage had broken down irretrievably, the wife should divorce the husband on the basis of a written confession of adultery to be provided by him. The second agreement was that the wife should have custody of the two children, with reasonable access for the husband. The third agreement was that, following the proposed divorce, there should be a consent order of the court in respect of financial provision and property adjustment, which would dispose finally of all claims by both the husband and the wife in respect of such matters.

16

In accordance with these agreements the wife presented a petition for divorce in the Plymouth County Court, and on 1 March 1982 was granted a decree nisi in an undefended suit. That decree was made absolute on 14 April 1982. Meanwhile negotiations with regard to the proposed consent order for financial provision and property adjustment were continuing, and on or about 12 August 1982 the solicitors on either side reached final agreement about the form and terms of such order.

17

The proposed consent order so agreed contained two essential provisions material to this appeal. The first such provision was that the husband should transfer to the wife his half-share in the matrimonial home, subject to the mortgage on it, for which the wife would, after such transfer, have sole responsibility. The expressed purpose of this transfer was to provide the wife with a home entirely of her own, in which she could live with the two children. The second essential provision was that, with the wife's consent, all her claims for financial provision for herself should be finally dismissed.

18

It is apparent from the correspondence between the solicitors on either side that these two essential provisions of the proposed form of consent order were interdependent, that is to say that, in substance, the consideration for the transfer by the husband to the wife of his half-share in the matrimonial home was the wife's final abandonment of all claims by her for financial provision for herself, and vice versa.

19

The proposed consent order contained a number of other provisions in addition to the two essential provisions referred to above. These are not, however, directly relevant to the appeal, and it will therefore be convenient to defer setting them out in full until a later stage. The possibility of the wife deciding to remarry another man at any time, and more particularly of her doing so in the near future, before the proposed consent order came to be put into effect by the court, was never once mentioned in the correspondence between the solicitors on either side, or between the parties themselves.

20

On 18 August 1982 the wife became engaged to be married to another man, Thomas Livesey, whom she had first met on 12 July 1982. She did not disclose the fact of this engagement either to the husband or his solicitors or even to her own solicitors.

21

On 19 August 1982 the solicitors for the husband and the wife issued jointly on behalf of their respective clients in the Plymouth County Court a...

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