‘On and Off’, ‘Off and On’, ‘On and On’ or ‘It Depends’? The Duration of the Duty of Disclosure

The duty

In NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), [2012] 1 FLR 1211 at [1], Mostyn J stated that the greatest of the many commandments of the law on financial remedies ‘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’ (original emphasis).

Unsurprisingly, this fundamental duty has been considered in numerous cases. As was noted by Thorpe LJ in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412, [2009] 2 FLR 922 at [12], it was ‘well stated’ by Sachs J (as he then was) in J v J [1955] P 215 at p 228/229, and ‘has never varied’: no matter what form the disclosure may take, ‘the obligation … is to be full, frank and clear in that disclosure’.

In Walkden v Walkden [2009] EWCA Civ 627, [2010] 1 FLR 174, Wall LJ (as he then was) stated, at [75], that ‘there is no reason … to reinvent the wheel’ and, at [76], that that edict ‘continues to govern the duty of disclosure, and the words, “full, frank and clear” … say everything that it is necessary to say about the duty’.

As Thorpe LJ made clear in Bokor-Ingram v Bokor-Ingram, at [11], the duty is such that ‘[a]ny information that is relevant to the outcome must be disclosed’.

The reason for the duty’s existence is readily apparent – as was made clear in Livesey (formerly Jenkins) v Jenkins [1985] FLR 813 per Lord Brandon of Oakbrook at p 822:

‘… unless a court is provided with correct, complete and up-to-date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognized and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred. My Lords, once it is accepted that this principle of full and frank disclosure exists, it is obvious that it must apply not only to contested proceedings heard with full evidence adduced before the court, but also to exchanges of information between parties and their solicitors leading to the making of consent orders without further inquiry by the court. If that were not so, it would be impossible for a court to have any assurance that the requirements of section 25(1) were complied with before it made such consent orders.’

Of course, in light of the amendments to Matrimonial Causes Act 1973 brought about by Matrimonial and Family Proceedings Act 1984, Lord Brandon’s references to s 25(1) must now be construed as references to s 25(1) and (2).

Much the same point was made by Mostyn J in NG v SG (Appeal: Non-Disclosure) at [1], ‘without full disclosure the court cannot render a true certain and just verdict’ as without it (to quote Lord Brandon) ‘the court cannot lawfully exercise its powers’ (original emphasis).

The consequences of the breach of the duty of disclosure has been considered in numerous cases but perhaps never more vividly than in Gohil v Gohil & Ors [2025] EWHC 3646 (Fam), per Williams J, where financial remedy proceedings which were issued in June 2002 did not conclude until May 2025 (with the Court of Appeal thereafter refusing both the husband’s and the Crown Prosecution Service’s applications for permission to appeal).

The beginning

As a matter of law, the duty is certainly engaged by no later than the point at which an application for financial remedies is issued. In Clibbery v Allan [2002] EWCA Civ 45, [2002] 1 FLR 565 at [104], Thorpe LJ observed that:

‘… the duty that Parliament has cast upon the court must be matched by a duty on the parties to supply the court with the fullest relevant information. Once the statutory duty is engaged by the issue of an application for relief under sections 22A – 24A then both parties are under the duty of full, frank and clear disclosure.’

In practice, however, it is necessary for parties to observe the duty long before Form A is issued or an application for a consent order is uploaded to the portal. As the Pre-Application Protocol for Financial Remedy Proceedings annexed to FPR PD 9A, makes clear:

• From the summary, at [7]:

  ‘Before starting court proceedings, the parties should attempt, where possible, voluntary financial disclosure and negotiation. Any disclosure must be full, honest and open. Parties must be advised of this duty by their legal advisers, including the ongoing duty to disclose any material changes.’

• From the Protocol, at [32] and [33]:

  ‘If the parties give pre-application financial disclosure, they must provide full and honest disclosure to the other party of facts, information and documents which are material and sufficiently accurate and up-to-date to enable proper negotiations then to take place. Openness in all dealings is essential.

  Legal representatives must tell their clients in clear terms of this duty and of the possible consequences of providing false information without an honest belief in its truth.’

The end

A more vexing question arises as to when the duty of disclosure ends.

In Livesey (formerly Jenkins) v Jenkins, at p 816, Lord Brandon framed the broad question of principle in the following way:

‘… Where a compromise in respect of claims for financial provision and property adjustment made by either or both of the former spouses has been reached by two firms of solicitors acting on their respective behalf, with the intention that the terms of such compromise shall subsequently be given effect to by a consent order of the court, is each of the former spouses under a remaining duty to disclose to the other, or to the other’s solicitors, the occurrence of a material change in his or her situation, which has taken place after the compromise has been reached, but before effect has been given to it by the making of a consent order by the court?’

At p 822, he held that (emphasis added):

‘… Any changes in the situation of either party occurring between the filing of the original affidavits and the final disposition of the claims by the court must be brought to the notice of the other party and the court by further affidavits or otherwise …’

In Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 at [36], Thorpe LJ noted that (emphasis added):

‘… ancillary relief proceedings are marked by features absent in other civil proceedings … The proceedings are quasi-inquisitorial. The judge must be satisfied that he has, or at least that he has sought, all the information he needs to discharge the duty imposed on him to find the fairest solution … The parties owe the court a duty, a duty of full, frank and clear disclosure. The duty is absolute.’

As noted above, in NG v SG (Appeal: Non-Disclosure) Mostyn J stated at [1] (emphasis added) that ‘without full disclosure the court cannot render a true certain and just verdict’.

In LIN v PAR [2025] EWFC 401, [2026] 1 FLR 712 at [94], Peel J stated (emphasis added):

‘Counsel for both parties accepted that the duty of disclosure extended not just to the date of the Xydhias agreement, but to the date of the draft order being agreed …; Livesey v Jenkins [1985] FLR 813 at page 823D.’

In Bokor-Ingram v Bokor-Ingram at [18], Thorpe LJ made the following observations regarding the scope of the duty, evidently included in which was a view as to its duration (emphasis added):

‘The duty to disclose extends beyond what is certain on the date that the order is made to any fact relevant to the court’s review of the foreseeable future.’

In S v S (No 2) (Ancillary Relief: Application to Set Aside Order) [2009] EWHC 2377 (Fam), [2010] 1 FLR 993 at [20], Singer J stated that it was ‘trite law’ that the duty of full and frank disclosure ‘extends until judgment is given’ (emphasis added).

In Walkden v Walkden at [72], Wall LJ described the proposition that the duty endured up until ‘the date on which the district judge made the final consent order’ (emphasis added) as ‘unexceptional’.

In N v N (Periodical Payments: Non-Disclosure) [2014] EWCA Civ 314, [2015] 1 FLR 241, McFarlane LJ (as he then was) referred, at [45]–[49], to Vernon v Bosley (No 2) (a personal injury claim) as setting out the common law position, which ‘plainly does apply to family proceedings’, as follows (emphasis added):

‘The authorities establish a clear and continuing duty upon all parties to ongoing family proceedings for financial relief to provide full and frank disclosure of all relevant material up until the conclusion of the proceedings. Thus, in the present case, the husband is correct to concede that there was a duty to disclose the limited information relating to his email exchange with the head-hunter which took place before the court order was made.’

Judicial decision making concludes when a final order is made or approved. This is why an approved consent order is final and binding once ‘made’ by the court. This includes unperfected (or so-called Rose) orders, as was confirmed in Kicinski v Pardi [2021] EWHC 499 (Fam), [2022] 1 FLR 474 per Lieven J at [17] and [18].

The Pre-Application Protocol states (emphasis added):

‘[34] The duty of disclosure is an ongoing obligation until a final financial remedies order has been made.’

The references in the authorities thus far referred to the ‘discharge [of] the duty imposed on [the judge] to find the fairest solution’, to the duty enduring until ‘final disposition’ by the court, extending to when ‘judgment is given’ or until the court ‘render[s] a … verdict’, to when an order is ‘agreed’ in draft and ‘made’ by the court, and to the proceedings thus reaching their ‘conclusion’, might suggest that the moment up to and including which the duty of disclosure continues is that at which the court exercises its statutory powers and discharges its decision-making function. The Pre-Application Protocol suggests likewise.

However, a number of authorities suggest that the duty extends further, to the date on which the court’s final order is sealed.

In AB v CD (Financial Remedy Consent Order: Non-Disclosure) [2016] EWHC 10 (Fam), [2017] 1 FLR 13 at [153], Roberts J observed (emphasis added):

‘… In Livesey, the House of Lords had made it clear that the parties’ duty of full and frank disclosure continued after they had reached agreement on their financial arrangements ... The wife in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] 2 WLR 47, [1985] FLR 813 had failed to disclose her engagement to another man before the agreement was put into effect by means of a sealed court order.’

In Goddard-Watts v Goddard-Watts [2019] EWHC 3367 (Fam), [2020] 1 FLR 885 at [20], Holman J stated (emphasis added):

‘It is not in issue between both legal teams that the husband remained under a continuing duty to give full and frank disclosure to the wife, and to the court, not only until the conclusion of the evidence and submissions … but until Moylan J had formally handed down his judgment … and indeed until the drafted terms of the resulting order had been settled and agreed by both parties and the judge and perfected by the seal of the court …’

Likewise, in Mostyn-Williams v Mostyn-Williams [2021] EWFC 123 at [9], HHJ Gibbons stated that (emphasis added):

‘The duty of disclosure continues until the proceedings are concluded. This must be no earlier than when the order is sealed.’

It might be argued that the notion that the duty of disclosure should continue beyond the operative date of the court’s decision, and until the order is sealed, is counter-intuitive given that the sealing of an order is an administrative act by a court officer (or now an essentially automated function of the software powering the portal the moment an approved order is uploaded thereto or approved thereon) rather than a judicial one.

Such a conclusion could be said to be fortified by the fact that pursuant to FPR 30.4(2) and (3), the default time for filing an appellant’s notice seeking permission to appeal is within 21 days ‘after the date of the decision of the lower court against which the appellant wishes to appeal’. This mirrors the wording in the CPR, which likewise states at CPR 52.12(2)(b) that an appellant must file the appellant’s notice within 21 days ‘after the date of the decision of the lower court which the appellant wishes to appeal’. As was observed in Sayers v Clarke Walker (A Firm) [2002] EWCA Civ 645, per Brooke LJ, this language – the use of the word ‘decision’ – marked a change of practice from the former Rules of the Supreme Court 1965, Ord 59, r 4(1), which provided that every notice of appeal was to be served ‘not later than 4 weeks after the date on which the judgment or order of the court below was sealed or otherwise perfected’. In other words, under the CPR time runs from the date of the decision and not the date of the seal on the order – and the FPR is in identical terms. This makes sense as any appeal is against the decision.

However, as Baroness Hale of Richmond observed in Re L-B (Reversal of Judgment) [2013] UKSC 8, [2013] 2 FLR 859 at [16] and [19] (emphasis added):

‘It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.’

‘Thus there is jurisdiction to change one’s mind up until the order is drawn up and perfected. Under the Civil Procedure Rules 1998 (CPR) (r40.2(2)(b)), an order is now perfected by being sealed by the court.’

A judge may therefore change their mind until the order has been ‘drawn up and perfected … by being sealed by the court’. That does not mean, however, that the original order had not, in fact, been made by the judge. Thus it might equally be argued that the duty to disclose was discharged on the making of that original order.

An ongoing duty?

In Burns v Burns [2004] EWCA Civ 1258 at [22], Thorpe LJ stated (emphasis added):

‘My present view is that in certain circumstances the duty of candour must clearly continue beyond the making of the substantive order. It is very undesirable for these rare cases, where the court must reopen to do justice, to be deferred or delayed a day longer than absolutely essential. Accordingly, the recognition of a duty to disclose a supervening event known only to one side, or any other circumstance that might arguably ground an appeal, would at least bring the process of reassessment to the court, or should bring it to the court, at an earlier date.’

This paragraph has been the subject of some (arguably adverse) comment and in N v N (Periodical Payments: Non-Disclosure) at [51], McFarlane LJ stated that ‘Thorpe LJ’s words were plainly not intended to be more than an indication of the then current direction of his thoughts’. Further, at [52], he stated that:

‘Although Thorpe LJ identifies positive factors in favour of extending the duty to provide full and frank disclosure in family finance cases beyond the close of the first instance proceedings, observations by Coleridge J in another case [i.e. Gordon (formerly Stefanou) v Stefanou [2011] 1 FLR 1582] indicate just how burdensome the responsibility of providing disclosure can be where the spouse concerned may have complicated and volatile financial arrangements.’

This led McFarlane LJ to conclude, at [53], as follows:

‘My preliminary view would be against such a duty on the ground that it would be unnecessarily burdensome, and a potential source of unwarranted satellite litigation to establish a formal requirement that the parties should keep all of their previous financial disclosure up to date in the lead up to an appeal hearing and before the appellate court has determined whether there has been any material error in the first instance decision.’

Arbitration cases: awards, orders and delay

The duration of the duty of disclosure in the context of court proceedings following the delivery of an arbitrator’s award was specifically considered by HHJ Booth (sitting as a deputy High Court Judge) in ON v ON [2024] EWFC 379.

It was the wife’s case that the duty of disclosure was owed by the parties until a court order, giving effect to the arbitrator’s award, was sealed. It was the husband’s contention that that duty ended at the final arbitration hearing, or with the delivery of the arbitrator’s award, on the basis that the award was analogous to a judgment of the court.

The judge stated, at [22], that the duty would continue ‘until the conclusion of the proceedings’ which ‘would normally be when the judgment is pronounced’ and that ‘[t]he latest moment would be when the final order is sealed’, although he also noted, at [23], that in different cases ‘different language has been used’.

Thereafter, at [28], HHJ Booth stated that although when made an arbitral award is in principle effective and binding as between the parties, it was not a court order and needs to be turned into a court order to be enforceable. Given it can only be turned into a court order made by a judge, he observed, ‘an arbitral award cannot have the same status as a judgment by a judge for the purposes of ending the duty of full and frank disclosure’.

At [34]–[38], HHJ Booth stated his conclusion as follows:

‘Against that background, can the award be treated as if it were a judgment, so that the duty of full and frank disclosure ends with the award? The answer to that question, may very well be, “It depends.”

If the award is followed by an immediate application to the court, with the court asked to make an order in terms of the arbitral award, I see no reason why the duty should not, for all practical purposes, end with the award. However, that is not what happened here …

Once the proceedings were before the court, then in my judgment, the duty continued again until this court has decided what should happen. There has been no “final disposition of the claims” as contemplated by Lord Brandon and no “conclusion of the proceedings” per MacFarlane LJ in N v N (above).

My conclusion is, on the facts of this case, the duty of full, frank, and clear disclosure has continued throughout, and continues until an order is endorsed by the court, following my judgment.’

On one reading of the decision, the duty ends, in arbitration cases, on the delivery of the award unless there is a significant delay in converting that award into an order. If that is the law then it might be considered to be problematic, practically speaking. How long a delay, it might be asked, must there be before a duty that was discharged on the delivery of the award is then revived?

An alternative reading might be that there is a duty to provide full and frank disclosure for the purposes of the arbitration that applies throughout the arbitration and a separate duty to provide full and frank disclosure for the purposes of the subsequent proceedings before the court that applies throughout those proceedings. But what then, it might be asked, of any intervening period and what would be the precise date from when the second separate duty applies?

Perhaps the preferable interpretation is that, come what may, the duty ends at the conclusion of the court proceedings that convert the award into an order, but that provided the award is converted into an order with the alacrity expected, so little time will pass between the delivery of the award and the making of an order that the two end dates will be so close together in time as to be much the same, ‘for all practical purposes’, in the normal run of cases.

While the orthodox view surely remains that, in principle, the duty of disclosure continues at least until a final order has been approved by a judge, pending any further decision on the specific end point, the pragmatic answer to any question as to precisely when the duty of disclosure ends both in cases before the court and those proceeding via arbitration may, in the words of HHJ Booth, be ‘it depends’.