The husband and the wife entered into consent orders and binding financial agreement in 2004 to deal with the adjustment of their property interest. The terms of the settlement which were set out in the annex attached to the binding financial agreement give to the husband 60% of the net assets.
The husband filed an application for the setting aside of the consent orders and the Binding Financial Agreement on the ground that the wife failed to make a full and frank disclosure of her assets. And at the time of the execution and signing of the agreement, he relied on her assertion and as to the value of the assets. That the information withheld was relevant to the execution of the agreement and consent orders.
At the time of the execution and signing of the binding financial agreement, the wife was a director of a company which was under the process of transforming from a private company into a public one. And for less than two months the company floated in the stock market, and the wife made a huge profit from selling her shares after the signing of the binding financial agreement.
The husband alleged that the wife although disclosed the company is floating in the stock market, she assured him that it would be for the number of years and the value of her share will be minimal.
The wife in her evidence alleged that she made a disclosure of the floating company o her husband and even proposed for the transfer of some of the shares to him, but that he failed to take it. She discussed the terms with him during the mediation process.
The Court in deciding the case was faced with complicating factor which is the fact that at the time of the execution of the agreement, the company of the wife was under the process of transformation and that the wife’s share was subject to strict confidentiality obligations that prohibit the wife to publicly disclose this information. Hence, at the time of discussion, she cannot present to the husband any document about her share or pending commercial transactions of the company.
The Court denied the application to set aside the Binding Financial Agreement filed by the husband for though the wife acted maliciously and fraudulently in failing to make a full and frank financial obligations which is a fundamental element of justice that applies not only in contested proceeding but also in out of court settlement, the husband was not induced in entering in the said agreement and he had made an informed decision.