Family Court Dismisses Husband’s Application to Set Aside Consent Order Over Alleged Non-Disclosure of Valuable Diamond

Citation: [2023] EWFC 247 (B)
Judgment on


The case of TM v AM [2023] EWFC 247 (B) is a family law matter heard in the Family Court at Derby, concerning an application by the husband (TM) to set aside a consent order on the grounds of material non-disclosure/fraud by the wife (AM). The judgment, presided over by District Judge Dinan-Hayward, offers a comprehensive examination of the principles related to consent orders, material non-disclosure, the burden of proof, and the conduct of both parties during the proceedings.

Key Facts

The husband, represented by Mr. B Malik, applied to set aside a consent order entered into on 18 November 2021 concerning the financial remedy during their divorce proceedings, alleging non-disclosure and fraud by the wife, who was represented by Mr. G Lazarus. The husband claimed the wife failed to disclose the ownership of a valuable diamond, which he believed was material to the financial agreement reached. He also disputed alterations made to a schedule of assets without consultation. The wife had received non-matrimonial assets through inheritance, while the primary matrimonial asset was the family home, which the consent order awarded entirely to the husband. The husband relied on circumstantial evidence, including an alleged “tip-off,” media reports, and personal recollections, to support his claims.

Several legal principles were instrumental in informing the judgment delivered by District Judge Dinan-Hayward. Key among these were:

  1. Material Non-Disclosure: The judgment examined material non-disclosure, which occurs when vital information that could influence the outcome of a financial agreement is withheld. A consent order can be set aside if it is proven that material non-disclosure influenced the agreement or the court’s approval of it.

  2. Burden of Proof: The husband bore the burden of proof on the balance of probabilities. His claims of fraud carried an implicit higher evidential threshold, requiring clear, cogent evidence to substantiate the allegations.

  3. Consent Order: The judgment underscored the binding nature of a consent order and the conditions under which it may be challenged or set aside.

  4. Hadkinson Direction: Discussed at the pre-trial review, this principle pertains to the court’s discretion to deny hearing an application if the applicant fails to comply with previous court orders, such as outstanding cost orders.

  5. Delay in Application: The timing of the husband’s application raised issues concerning the appropriate period within which to challenge a consent order. The typical upper limit is 28 days barring exceptional circumstances.


The judgment ultimately dismissed the husband’s application to set aside the consent order due to the following findings by the court:

  • Lack of direct or indirect evidence linking the wife to the possession or sale of the alleged diamond.
  • The discrepancies noted in the financial information provided were characterized as minor and not materially impactful.
  • The husband, despite strong personal conviction, was unable to objectively substantiate his claims with credible evidence.


District Judge Dinan-Hayward’s judgment in TM v AM notably reflects the stringent criteria that must be met for a consent order to be set aside in cases of alleged non-disclosure. The case reaffirms the principles of materiality and the burden of proof in financial remedy proceedings. The decision underscores that parties must substantiate their allegations with clear, persuasive evidence, and that the courts adhere strictly to procedural fairness and factual accuracy when adjudicating such matters. The judgment also highlights that personal conviction or belief is insufficient to overturn a legal agreement or order without concrete supporting evidence.

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