Time of the Essence in Overturning Agreements Made Under Duress
We have often stressed the importance of obtaining high-quality legal advice in any dispute and starting any necessary legal action as soon as possible, and a recent divorce dispute illustrates why.
It involved a couple who were divorced in 2015. The financial settlement was made by way of a consent order and, as a result, the ex-wife received a cash settlement in excess of £1.7 million and financial support from her ex-husband for herself and their children.
In 2018 she went back to court, claiming that the original settlement had been obtained under duress and by 'undue influence', that her ex-husband had committed fraudulent non-disclosure of his true means and that she had not had legal advice on the terms of the agreement. Among specific allegations made were that he had transferred $5 million to his mother and had retained or 'squirrelled away' various assets without disclosing them.
She wished the original consent order to be set aside. Before it was made, she had instructed a firm of commercial solicitors that did not have a family law department to act for her. This was, she claimed, done at her ex-husband's behest. That firm instructed another firm to provide her with family law advice. Her ex-husband had instructed the commercial firm on other matters and his ex-wife alleged that the arrangement had been made so that he could control the advice she was given, which she asserted was scant.
As happens in almost all such cases, there was voluminous and contradictory evidence. However, an important consideration was that the woman was aware of most of the matters about which she was complaining when the original consent order was made. Secondly, when she eventually went to a different firm of solicitors for advice, she failed to take action for nearly a year, a delay which undermined her claim as it lacked the necessary promptness. The judge commented that 'on the hypothesis that she was constrained from bringing her application for a period because of the husband's undue influence or duress, the onus was on her to make her application as soon as she could reasonably do so once she became free from that influence or duress. In practice, that means within weeks, not months.'
Her application was rejected.