“Does Fraud Unravel All?”: The Court’s Approach to Material Non-Disclosure

Introduction

 As Lord Brandon aptly put it over 40 years ago in Livesey v Jenkins [1985] FLR 813, HL parties in financial remedy proceedings possess a duty to make “full and frank disclosure of all material facts to the other party and to the court”. This is central to the court’s exercise of its powers having regard to the factors in Section 25 of the Matrimonial Causes Act 1973. 

Whilst not reinventing the wheel, Copinger-Symes v Copinger-Symes & Ors [2026] EWCA Civ 282, heard in the Court of Appeal, serves as a useful reminder of the nature of this duty and the court’s power to set aside any order where there has been non-compliance.

The case involved financial remedy proceedings which had begun in September 2017 and concluded with a consent order in March 2022. The husband had known a long time before March 2022 that his then wife’s parents were likely to give him a gift of at least $14.77 million but had not disclosed this. On the basis that the husband’s non-disclosure was material and would have made a significant difference to the order, HHJ Hess’s decision to set aside the consent order was upheld by Moylan LJ.

Key Principles

 The burden of proof begins with the applicant. To set aside the order, the applicant must establish firstly that there has been non-disclosure and secondly that it was intentional. At this point, as Lord Neuberger stated in Gohil v Gohil [2015] UKSC 61, “it is deemed to be material, so that it is presumed that proper disclosure would have led to a different order unless that party [the respondent] can show, on the balance of probabilities, that it would not have done so”. This was reiterated by Baroness Hale in Sharland v Sharland [2015] UKSC 60,who introduced a second exception to the presumption, that being if “the fraud would not have influenced a reasonable person to agree to it”. The burden of proof, therefore, at the point the non-disclosure is shown to be intentional, shifts on to the respondent.

Returning to the facts of Copinger-Symes, one can see how these principles are applied. In his judgment, Moylan LJ reiterated that because this had been a case involving deliberate non-disclosure, it was deemed material and therefore it follows that in such cases prima facie the order should be set aside. The respondent was unable to discharge the presumption that disclosure of the $14.77 million gift would have led to a different order, indeed Moylan LJ found that this would have completely changed the landscape and nature of the case as presented in 2022. Similarly, Andrews LJ concluded that the court’s approval of the order was premised on a “distorted picture”.

As established in Livesey v Jenkins and reiterated in Sharland, the presumption that the financial non-disclosure is material does not apply where it is inadvertent. The burden of proof would remain on the applicant to show that proper disclosure would have led to a substantially different order being made.

Implications of Material Non-Disclosure

 In Copinger-Symes, the material non-disclosure was found to alter the entire financial landscape and the needs-based assessment for both parties. 

However, where this is not the case, a consideration for practitioners should be whether a whole-sale set aside of the order and a re-hearing is the best option. This is particularly pertinent given the emotional cost of lengthy further proceedings. As per the judgment of Wilson LJ in Kingdon v Kingdon [2010] EWCA Civ 1251, it does not follow that the exercise and balancing of the s 25 factors must be conducted anew.

The alternative open to the court is to isolate the issues to which the non-disclosure relates and to rectify the defect in the prior order without re-hearing proceedings. Kingdon concerned the material non-disclosure by the husband of shares which he later sold at profit. This was cured by the addition of a sub-paragraph which provided for an extra deferred contingent element of a lump sum referable to the shares. 

In considering whether this approach could be appropriate, practitioners may wish to consider the following:

1. Was the non-disclosure confined to a discrete element of the assets?
2. To what extent would the prior financial landscape have been altered?
3. Could this defect be repaired with an additional or different provision which would have been made at the time of the order in the event proper disclosure had been given?
4. If the defect had been repaired, would fairness have been achieved?

The Kingdon approach is likely to be inappropriate where the non-disclosure is wide-ranging. In such cases a re-hearing, with an appropriate new analysis of the financial resources and associated balancing of the s 25 factors may be necessary to achieve a fair division.

Baroness Hale in Sharland endorsed Kingdon as a good example of a case where it was possible to isolate the issues to which the material non-disclosure related and deal with these. However, practitioners should be wary of the prospect that such an approach could allow the non-compliant party to benefit from their fraud. In Goddard-Watts v Goddard-Watts [2023] EWCA Civ 115, segregation of the wife’s capital award was considered “too blunt a division of the wife’s claim” and the wife should have been able to air her claim in the full knowledge of the disclosable facts. The husband’s material non-disclosure was so far-reaching that Macur LJ concluded it was necessary to consider the entire financial landscape anew.

Conclusion

Baroness Hale posed the question in Sharland: “does “fraud unravel all”, as is normally the case when agreements are embodied in court orders or is there some special magic about orders made in matrimonial proceedings, which means that they are different?”.

The answer is nuanced. The Kingdon approach provides a path which avoids a further re-hearing and new analysis of the s 25 factors. However, the effect of the material non-disclosure is likely to be dependent on the extent to which it would have changed the financial landscape upon which the order was made. The more significant this change, the more likely it is that the order should be wholly set aside and a re-hearing take place.

CONOR HOGAN

DEANS COURT CHAMBERS