Jenkins v Livesey (formerly Jenkins)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT |
| Judgment Date | 21 December 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1221-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1983 |
| Docket Number | 83/0487 |
[1983] EWCA Civ J1221-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PLYMOUTH COUNTY COURT (HIS HON. JUDGE COX)
Royal Courts of Justice,
The President
(Sir John Arnold)
Mrs Justice Heilbron
83/0487
No. of Matter 81 D 1192
MR A.C. MYER (instructed by Messrs. Gregory. Rowcliffe & Co., Agents for G. and I. Chisholm, Solicitors, Bodmin) appeared on behalf of the Appellant.
MISS J.H. RITCHIE (instructed by Messrs. Bond, Pearce & Co.) appeared on behalf of the Respondent.
The judgment I am about to deliver is the judgment of the Court.
This is an appeal from an order of His Honour Judge Cox made at Plymouth County Court on 5th May 1983. That order dismissed an appeal from an order of Mr Registrar Carder which he had made on 2nd September 1982, leave to appeal out of time against that order having been given by His Honour Judge Cox at the hearing at which he made the order appealed from.
The learned Registrar's order of 2nd September 1982 was a consent order applied for by both the appellant and the respondent, whom we shall call respectively the husband and the wife, embodying the terms of an agreement which had been made between them on or about 22nd June 1982. This agreement, of which a further term was that the consent order should be applied for, regulated the financial consequences of the dissolution of the marriage between the husband and the wife. The Decree Absolute had been granted on 14th April 1982.
On 18th August 1982 the wife decided that she would remarry, and on 24th September 1982 she did remarry. Her new husband was a man whom she came to know after the making of the agreement on or about 22nd June 1982. The husband knew nothing of her intention to remarry prior to her remarrying, and he learned of this shortly before 21st October 1982. On 16th November 1982 his solicitors wrote to the wife's solicitors stating his intention to apply to set aside the consent order by reason of the wife not having disclosed her intention to remarry, and on 3rd February 1983 the husband issued a Summons appealing to the Judge against the consent order of the Registrar.
So far as material, the consent order, which of course followed the antecedent agreement, provided that the husband should transfer to the wife his interest in the matrimonial home, Peach Tree Cottage, near Liskeard, Cornwall, which belonged to the spouses in equal shares, and that all claims of the husband and wife against each for ( inter alia) periodical payments should be dismissed. The husband says that had he known that the wife was likely to be remarried in the near future, so that his obligation to make periodical payments to her was likely soon to be terminated under Section 28 of the Matrimonial Cuases Act, 1973, he would not have been willing to transfer his share, said to be worth about £11,000 in the property, at least on the terms embodied in the consent order.
He claims to be entitled to set aside the consent order on one or other of two alternative grounds: the first is the failure of the wife to tell him before the making of the consent order of her decision to remarry; the second is the fact of remarriage after the making of the consent order.
As regards the first ground, it is established that, where an agreement reached in the course of matrimonial proceedings is embodied in a consent order, the legal rights of the parties thereafter derive from that order and that order can be set aside on appeal in the same way as any other order; Thwaite v. Thwaite (1982) Fam. 1 (C.A.). The available grounds in addition to fraud and mistake and other similar matters such as undue influence include, in the case of an order made in the matrimonial jurisdiction, a material failure to comply with an obligation of disclosure (ibidem page 8). There was not in the instant case any obligation of disclosure of the sort envisaged in Thwaite v....
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