We cannot accept that this is a case of non disclosure for the following reasons:-
(i) Despite the mistake made by Advocate Binet in her e-mail of 13 th July, 2017, the documentation disclosed with her e-mail was clear as to the underlying position. The petitioner's bank statements showed the monthly income of £1,766.57 being received from Aviva, and the BM valuation showed precisely the assets held in that pension, its yield, and the limited income it produced. The BM pension could not conceivably have produced a monthly income of £1,766.57 and the valuation stated in terms that it did not provide that income.
(ii) The respondent was, in any event, fully aware of the two pensions as he disclosed them both in his tax returns. He expressly admits this in his affidavit. This is not a case where the true financial position of the petitioner was hidden away in voluminous documentation and obscure accounts, requiring the respondent to "act like a ferret".
(iii) To the extent that there was any confusion over the names of the pension providers in respect of both pensions, that was clarified at the round table meeting before the agreement was reached. Advocate McFadzean was fully aware of the petitioner's widow's pension as a financial resource of hers and could have asked for it to be valued, if that were possible.
(iv) The policy under which the widow's pension was paid was not in the petitioner's name and she had made no contribution into it. She explains in her affidavit that it was a policy taken out by her first husband through his work. He died in a tragic accident at work in 1989, less than two years after they had been married and nine years before the petitioner and the respondent commenced their relationship. To her it provided an income stream with no capital value.
The widow's pension was a financial resource of the petitioner openly disclosed by her, but to which she had attributed no capital value. Indeed the respondent was fully aware of it in any event from the many tax returns he had submitted during the marriage. The petitioner had been honest with the respondent. There was no misrepresentation on her part innocent or otherwise. It was open to the respondent to contend that a capital value should be attributed to the widow's pension. On advice, he did not do so.
Accordingly, we find that the agreement reached between the parties was not vitiated by non disclosure, and it follows that we did not need to go into the question of whether that non disclosure was material.
The Court must still exercise its independent discretionary review of the circumstances and terms of the agreement. There is no question here of undue pressure being applied by the petitioner, or exploitation by the petitioner; it is not suggested that she was in a dominant position. Both parties were legally represented by experienced Advocates and the respondent does not suggest that he received bad legal advice. As was said in Edgar v Edgar , there is an important general proposition that formal agreements, properly and fairly arrived at, with competent legal advice, should not be displaced, and there is no good or substantial ground for concluding that an injustice will be done by holding the parties to the terms of their agreement.
For these reasons, the Court determined to give effect to the agreement reached between the parties.
Authorities
L v V [2004] JRC 033
Matrimonial Causes Law (Jersey) 1949
Xydhias v Xydhias [1999] 1 FLR 683
Edgar v Edgar [1981] 1 FLR 19
Livesey (formerly Jenkins) v Jenkins [1985] 1AC 42
Robinson v Robinson [1983] 3 FLR 102
P-S v C [2006] JLR 463
AB v CD [2016] EWHC 10 Fam
Sharland v Sharland [2015] UKSC 60