FRJ – ‘Well, He (or She) Didn’t Ask!’ – the Impact of Non-Disclosure When the Question Isn’t Asked

Is it a shield to non-disclosure by one party during financial remedy proceedings if the other party could (and perhaps should) have asked?

The duty on parties to give full and frank financial disclosure is not merely a private obligation between them; it is a duty to the court to ensure it can properly exercise its own duty under MCA 1973 s 25 (as is made clear in Livesey (formerly Jenkins) v Jenkins [1985] FLR 813 per Lord Brandon of Oakbrook at p823).

As Mostyn J stated in NG v SG (Appeal: Non-Disclosure) [2012] 1 FLR 1211 (original emphasis):

'[1] The law of financial remedies following divorce has many commandments but the greatest of these is the absolute bounden duty imposed on the parties to give, not merely to each other, but, first and foremost to the court, full frank and clear disclosure of their present and likely future financial resources. Non-disclosure is a bane which strikes at the very integrity of the adjudicative process. Without full disclosure the court cannot render a true certain and just verdict. Indeed, Lord Brandon has stated that without it the court cannot lawfully exercise its powers (see Jenkins v Livesey (Formerly Jenkins) [1985] AC 424, [1985] 2 WLR 47, [1985] FLR 813). It is thrown back on inference and guess-work within an exercise which inevitably costs a fortune and which may well result in an unjust result to one or other party.'

As a consequence, as was said by Lord Wilson in Gohil v Gohil [2015] 2 FLR 1289 at [22], ‘One spouse cannot exonerate the other from complying with his or her duty to the court’.

In KG v LG (Financial Remedies: Material Non-Disclosure) [2015] EWFC 64 Moor J stated as follows:

'[52] The third principle advanced by Mr Amos requires at least some clarification. Mr Amos submits that an applicant should not be able to rely on putative non-disclosure if such would have been avoidable by reasonable enquiry by her. He relies on B v B [2007] EWHC 2472; [2008] 1 FLR 1279 per Sir M Potter, President. He submitted with vigour that the Wife in this case had taken the conscious decision to abandon the exchange of Forms E in favour of negotiation. The Husband had offered full disclosure and she cannot therefore now complain that she chose to settle without that disclosure.
 
[53] Mr Posnansky QC for the Wife responds equally forcefully that, if that was the law, no case would ever settle again without exchange of complete Forms E and all supporting documentation. He submits that a decision by parties to negotiate does not absolve them from their duty of full and frank disclosure. In short, one cannot allow the other to settle on information that is materially in error.
 
[54] The submissions of Mr Posnansky in this respect are correct. I remind myself that Livesey v Jenkins itself was a case involving a consent order. B v B arose in very different circumstances. A wife was attempting to set aside an order on Barder [1987] 2 All ER 440 principles, complaining about an allegedly inaccurate valuation of a matrimonial home. In such circumstances, each party is in a position to test the valuation evidence by reasonable enquiry and cannot complain if they fail to do so. A more pertinent example would be a case in which there is £100,000 in a bank account that happens to be in the joint names of the parties. It is not disclosed by either party. If the Wife knows that the account exists, she can make reasonable enquiry herself (as she is a joint holder of the account) and cannot complain if she fails to do so. It is just possible, however, that she might not know about the account. If that is the case, she cannot make reasonable enquiry herself and she must rely on her husband's disclosure being full and frank.
 
[55] In this particular case, the Wife did not have access to the trust deeds or accounts. She was reliant on the Husband making full and frank disclosure in that regard. Her solicitors did ask questions but both parties (not just the Wife) decided to abandon the formal Form E procedure and negotiate. In doing so, the duty of both parties to provide full and frank disclosure did not disappear. A husband cannot simply rely on an offer to provide full disclosure in a future Form E. He has to provide sufficient disclosure to give the wife a proper picture of his financial resources. In such circumstances, a Wife is entitled to rely on the information that is provided.'

In Gohil v Gohil the settlement of the wife's claims was achieved at an FDR appointment before Baron J in April 2004. There was a recital [‘recital 14’] to the order then made, namely that:

‘the [wife] believes that the [husband] has not provided full and frank disclosure of his financial circumstances (although this is disputed by the [husband]), but is compromising her claims in the terms set out in this consent order despite this, in order to achieve finality.’

Lord Wilson stated as follows:

'[19] The husband argued unsuccessfully before Moylan J that recital 14 to the order dated 30 April 2004 disabled the wife from making any complaint about non-disclosure on his part. The husband seems scarcely to have pressed the argument in the Court of Appeal and it did not figure in McFarlane LJ's judgment; but, apparently emboldened by the recent decision of the Court of Appeal in Hayward v Zurich Insurance Co PLC [2015] EWCA Civ 327, the husband revives the argument in case the Court of Appeal's decision in the present case needs extra defence.
 
[20] It is obvious that recital 14 to the order dated 30 April 2004 was inserted at the request of the husband, albeit that the wife agreed to it. Such recitals to financial orders made by consent in divorce proceedings are not common; but nor are they unknown. Those advising a husband in negotiating a settlement with a wife openly sceptical about the comprehensiveness of his financial disclosure occasionally appear to consider that such a recital has some protective effect for him against any later attempt to reopen it on the ground of his non-disclosure. Are they correct?
 
[21] In the Hayward case the claimant alleged that his accident at work had led to specified injuries of a long-term character. In their defence the employers, by their insurers, pleaded that the claimant had "exaggerated" his injuries and that he was guilty of "lack of candour". His claim was thereupon settled in the sum of £135k. Five years later the insurers, who had received fresh evidence of the claimant's full recovery prior to the settlement, sought to reclaim most of the award in an action for deceit. The Court of Appeal held that it could not do so. In the light of its pleaded assertions that the claimant's presentation of his injuries had been dishonest, the insurers could not be said to have relied on his presentation when entering into the settlement. So said Underhill LJ at para 23; and at para 25 he concluded that "parties who settle claims with their eyes wide open should not be entitled to revive them only because better evidence comes along later". This court has recently granted permission to the insurers to appeal against the Court of Appeal's decision.
 
[22] In my view the reasoning of the Court of Appeal in the Hayward case, even if it were to be upheld by this court in the circumstances of that case, does not apply to a case in which the dishonesty takes the form of a spouse's deliberate non-disclosure of resources in financial proceedings following divorce. For the spouse has a duty to the court to make full and frank disclosure of his resources (see the Livesey case cited in para 18(a) above at p 437), without which the court is disabled from discharging its duty under section 25(2) of the Matrimonial Causes Act 1973 and any order, by consent or otherwise, which it makes in such circumstances is to that extent flawed. One spouse cannot exonerate the other from complying with his or her duty to the court. No doubt on 30 April 2004 Baron J closely scrutinised the order which she was invited to make; and scrutinised also the content of the undertakings which she was invited to accept, in the knowledge that on a later occasion she might be invited to enforce them. But what the parties found convenient to record as agreed recitals to the order was of little interest to Baron J. In the present context, namely that of a financial order in divorce proceedings, a form of words such as recital 14 has no legal effect.'

As Moylan LJ observed in Felicite Terrill Perez De La Sala & Anor v Maria-Christina De La Sala & Ors [2026] EWCA Civ 282 at [62] the recital there had ‘no legal effect’ even though it expressly stated that the wife did not believe the husband had made proper disclosure of his financial resources.

The paragraphs set out above from KG v LG (Financial Remedies: Material Non-Disclosure) per Moor J were cited in TRNS v TRNK [2023] EWFC 133 per Sir Jonathan Cohen. Thereafter having also cited from HD v WB [2023] 2 FLR 395 per Peel J at [90], Bokor-Ingram v Bokor-Ingram [2009] 2 FLR 922 per Thorpe LJ at [18], and Kingdon v Kingdon [2011] 1 FLR 1409 per Wilson LJ (as he then was) at [23] he said as follows:

'[38] It is clear from these authorities and others (for example Roberts J in AB v CD [2016] 4 WLR 36) that notwithstanding the ability of a party to opt out from a detailed investigation of a spouse's finances if she/he wishes, the disclosure given by the other must be sufficiently accurate that it gave the receiving spouse sufficient information to make an informed judgment of the value of the family assets.'

These principles were subsequently applied in Cummings v Fawn [2024] 1 FLR 117 per Mostyn J. The court was considering an appeal against an order of Her Honour Judge Jacklin QC in which she held the parties to a Xydhias agreement. The wife appealed on a number of grounds including that the court had erred in its approach to the husband’s non-disclosure of an inheritance worth at least £4 million net – that he became entitled to following the death of both of his parents during the currently of the financial remedy proceedings – by concluding that it was ‘not operative’.

Mostyn J stated as follows:

'[57] … on the death of his parents the husband was fixed with a duty to give a full, frank and clear disclosure of the expected post-tax value of his inheritance. Unfortunately he did not do so. His lack of candour was not confined to suppresio veri but extended to suggestio falsi …
 
[59] … neither form [D81] makes any mention at all of the husband's inheritance. These forms were not merely misleading; they were untrue.
 
[61] However, the judge went on to find that the non-disclosure was "not operative". Her finding was:
 

"[57] Having said that, I reached the conclusion that this lack of openness was not operative as far as this agreement was concerned or regarding the conduct of the litigation because W knew the size of the estate. She also had the means to require H to provide the information through a questionnaire. She failed to do so. I note the assertion in her recent statement that the DJ in July 2020 dismissed a request for updating disclosure. That is not accurate at all. The DJ directed questionnaires."

 
[62] As to the wife’s knowledge her finding was:
 

"[51] She also said that in, respect of H's inheritance, she knew the amount that he was likely to inherit. She had calculated that his parents were worth about £5 million."

[64] In my judgment the wife plainly did not have knowledge in the sense of having received objective evidence about the estates; at its highest she had a vague subjective belief based on the opinion of her father-in-law's sister and her general awareness.
 
[65] In Cathcart v Owens [2021] EWFC 86, [2021] All ER (D) 26 (Nov) I went into the law concerning the impact of non-disclosure in financial remedy proceedings in some detail. I stated at para [30]:
 

"Fraud is classically defined as wrongful deception intended to result in financial or personal gain. In the field of ancillary relief the traditional grounds for seeking the set-aside of a final order are conventionally stated to include both fraud and non-disclosure: see for example FPR PD 9A para 13.5. Deliberate non-disclosure is, of course, a species or subset of fraud for both in law and morality suppressio veri, suggestio falsi. The reason for separately identifying fraud and non-disclosure as grounds for a set-aside is that there are some rare cases whether the material non-disclosure is inadvertent and therefore not fraudulent."

[66] There is no doubt that the non-disclosure by the husband in this case falls within this definition of fraud.
 
[69] I have set out above the judge's second reason for holding that the husband's non-disclosure was non-operative. She held that the wife should have made her own enquiries to find out about the inheritance, thereby saving herself from the effect of the husband's deception. But the law is clear that there is no such duty of due diligence imposed on the victim of a fraudulent deception: see Takhar v Gracefield Developments Ltd and Others [2019] UKSC 13, [2020] AC 450, [2019] 2 WLR 984 per Lord Sumption at paras [54]–[66]. This has recently been confirmed in Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766, [2022] 1 WLR 860, [2022] 3 All ER 867. At para [56] Andrews LJ stated:
 

"The Supreme Court held that in a case where the alleged fraud was not in issue in the previous proceedings, even if the previous judgment has been entered after a trial on the merits, the person seeking to set aside the judgment is not obliged to show that the fraud could not have been discovered before the original trial by reasonable diligence on his or her part. The requirement in Henderson v Henderson (1843) 3 Hare 100 that ‘a litigant should bring forward his whole case’ in the first set of proceedings does not apply in such circumstances, and there are no good policy reasons to allow the fraudulent party to rely upon the passivity or lack of due diligence of his opponent."

[70] Mr Infield did not seek to uphold this second reason for holding that the husband's non-disclosure was non-operative.
 
[71] None of the above authorities were cited in the judge's judgment. I do not believe that they were even discussed in argument before her.
 
[74] If I were to accept the argument that the non-disclosure in this case was completely non-material because the wife held a vague belief that the estate was substantial then I would blow an enormous hole in this field of jurisprudence.
 
[75] Therefore, where the court is dealing with an application to set aside a consent order, (or, as here, an application that a draft consent order should be rejected) on the ground of fraudulent non-disclosure, the court should not entertain any argument that the victim of the non-disclosure could, with due diligence, have discovered the material facts, and should apply stringently the principle that the consent order, and the underlying agreement, must be set aside unless the non-discloser can show by clear and cogent evidence that a reasonable person in the position of the victim of the deception would, if she had full knowledge of the facts, have reached the same agreement.'

The appeal was therefore allowed on this ground (and others) and remitted for a rehearing.

This issue was considered further in Helliwell v Entwistle [2026] 1 FLR 112 per King LJ. From [94]–[99] she referred to many of the paragraphs from Cummings v Fawn set out above and thereafter stated:

'[99] I agree that a similarly stringent approach must be taken in a case of fraudulent non-disclosure in a prenuptial agreement
 
[100] Moreover, Baroness Hale's reference [at paragraph [33] of Sharland v Sharland [2015] 2 FLR 1367] to a reasonable person, should not be taken as imposing upon a victim of deceit a duty of due diligence. That this the case was made clear by the Supreme Court in Takhar v Gracefield Developments Ltd and Others [2019] UKSC 13; [2020] AC 450; [2019] 2 WLR 984 at [63], where Lord Sumption observed,
 

‘… the basis on which the law unmakes transactions … which have been procured by fraud is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are. That is why it is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in: Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99, 120 (Lord Chelmsford); Redgrave v Hurd (1881) 20 Ch D 1, 13–17 (Jessell MR). It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he ‘should’ have raised it.’

[101] In my judgment, these principles apply to a pre-nuptial agreement where a party has been guilty of fraudulent non-disclosure or fraudulent misrepresentation. If the misrepresentation was intended to cause the representee to enter into the agreement, the representor will have the burden of rebutting a strong evidential presumption that the misrepresentation played a material part in the decision of the innocent party to enter into the agreement: rebutting that presumption will require clear and cogent evidence.
 
[123] Where … as here, the parties agree and record in the document the extent of and approach to be taken to disclosure, they are agreeing as to what information is to be made available to enable each of the parties to make a decision as to whether they wish to be bound by the terms contained in the proposed agreement. Wilful or fraudulent breach of that agreement such that the disclosure made bears no resemblance to the true wealth of a party is entirely different from the position in Radmacher. In my judgment, such conduct is capable of being material non-disclosure as it deprives the other party of the information that they have agreed is necessary in order for them to decide whether to agree to a pre-nuptial agreement in the terms proposed.'

The issue of non-disclosure has been considered most recently in Felicite Terrill Perez De La Sala & Anor v Maria-Christina De La Sala & Ors [17th March 2026]. From paragraph [58]–[64] Moylan LJ cited from Livesey v Jenkins, Gohil v Gohil, and Sharland v Sharland. As he then observed:

'[71] … as demonstrated by Gohil, one party’s suspicions or belief that the other party has or will have financial resources which they have not disclosed, does not ‘exonerate the other from complying with his or her duty’ to give full and frank disclosure. The order is still potentially "flawed".'

If there is such fraudulent or intentional/deliberate (as opposed to innocent or accidental) non-disclosure then the approach is as set out in Sharland v Sharland [2015] 2 FLR 1367 by Lady Hale:

'[32] … It would be extraordinary if the victim of a fraudulent misrepresentation, which had led her to compromise her claim to financial remedies in a matrimonial case, were in a worse position than the victim of a fraudulent misrepresentation in an ordinary contract case, including a contract to settle a civil claim. As was held in Smith v Kay (1859) 7 HL Cas 750, a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality. Furthermore, the court is in no position to protect the victim from the deception, or to conduct its statutory duties properly, because the court too has been deceived.
 
[33] The only exception is where the court is satisfied that, at the time when it made the consent order, the fraud would not have influenced a reasonable person to agree to it, nor, had it known then what it knows now, would the court have made a significantly different order, whether or not the parties had agreed to it. But in my view, the burden of satisfying the court of that must lie with the perpetrator of the fraud. It was wrong in this case to place on the victim the burden of showing that it would have made a difference.'

In Felicite Terrill Perez De La Sala & Anor v Maria-Christina De La Sala & Ors Moylan LJ set out the above paragraphs (and one to similar effect in Gohil v Gohil per Lord Neuberger at [44]) and thereafter stated (original emphasis):

'[64] It is important to note what has to be established, namely that proper disclosure would not have led to a substantially different outcome. As pointed out by Holman J in Goddard-Watts v Goddard-Watts [2019] EWHC 3367 (Fam) [2020] 1 FLR 885, at [64], it is not sufficient if the party who ‘deliberately perpetrated the non-disclosure’ establishes only that it might not have led to a different order.'

This led Moylan LJ to state as follows:

'[69] Mr Todd rightly accepted that ‘the burden of proving lack of materiality is on the Husband’ because, as set out in Sharland, at [32], ‘a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality’. Material in this context means disclosure which is not ‘relatively minor’ but such as would have led to a substantially different order being made. Accordingly because, I repeat, in cases of deliberate non-disclosure, the non-disclosure is deemed to be material, although criticised by Mr Todd, the judge was right to say that ‘it prima facie follows that I should set aside the March 2022 consent order’ subject to the husband establishing, what I will call, the Sharland exception.'

So the answer to the question posed is ‘no’. There is no duty of due diligence imposed on parties to financial remedy proceedings. The duty is one to give full and frank financial disclosure to the other party and to the court.

If this duty is breached and the court is satisfied that it is a case of fraudulent or intentional/deliberate non-disclosure then this is deemed to be material and the burden is then on the perpetrator of the fraud to satisfy the court that the fraud would not (and not – importantly – might not) have led to a substantially/significantly different order being made by the court.

So if they don’t ask you must still tell.