N v N (Rev 1)
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE PATTEN
- SIR STEPHEN SEDLEY
Areas of Law
- Family Law
- Evidence Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case involves a legal dispute where a wife sought to set aside a 2009 order for periodical payments on grounds of her husband's alleged material non-disclosure of his work and income. Although the trial judge found material non-disclosure, prompting the case to be reopened, the appellate court found this conclusion unsupportable based on the evidence and legal principles. The husband's appeal succeeded and the original order was reinstated. The decision elaborates on the duties of full disclosure during both trial and appeal processes, and whether non-disclosed material would substantively alter the court’s original order.
Judgment
Lord Justice McFarlane :
The issue in this appeal relates to the circumstances in which a court may, on the grounds of material non-disclosure, set aside an order for financial provision following divorce.
The issue in the case relates to an order for periodical payments to be paid by a former husband to his former wife. The order was made on 24 th November 2009 and provided for periodical payments at the rate of £1,000 per month until 1 st April 2012. The order included a bar under Matrimonial Causes Act 1973, s 31 (7B)(c)(i) [“MCA 1973”] preventing the wife making any further application to extend the requirement to make payments beyond that final date.
The husband had, in the past, commanded a high salary in employment in various institutions in the City. He had, however, ceased work in September 2008 citing depression and stress consequent upon the continued litigation between these former spouses over money and arrangements for the children. A key finding in the judgment supporting the periodical payments order of November 2009 was the judge’s acceptance that the husband was unable to work due to depression and that, at that time, he had a minimal earning capacity. However the judge contemplated that he might choose to work in the near future and that it was likely that he would return to well paid employment when the litigation was completed.
On 28 th November 2011 the wife issued an application to set aside the 2009 order on the basis of the husband’s material non-disclosure. That application was determined some 18 months or so later by the judge who had made the original order. Having reviewed evidence of the husband’s remuneration from business activities and work during the first half of the three and a half years following her original order, the judge concluded that there had indeed been material non-disclosure to her in 2009, and to two appellate courts subsequently, sufficient to justify setting aside the original November 2009 order. She therefore gave consequential directions for a subsequent hearing to re-determine the wife’s periodical payments application. The husband now appeals to this court against the judge’s determination of July 2013 setting the original order aside for material non-disclosure.
Detailed history
Having set the scene, it is necessary now to descend to a lower level of detail to explain the background circumstances. The couple met in l986 and subsequently married in 1993. There are two children, a bo