ON v ON: Arbitration awards in divorce and non-disclosure

We successfully represented the applicant wife in ON v ON [2024] EWFC 379, a long running case in which the court changed an arbitral award on the basis of the husband’s fraudulent non-disclosure.

Background

The parties to this case had a long marriage of 24 years, sharing children – the youngest of whom remains at school and lives with her mother. The husband is the managing director of a multi-million pound business.

The parties first attended a private FDR appointment but were not able to reach an agreement and thereafter agreed to arbitrate, with an award handed down at the start of 2022.

Issue

Following the arbitrator’s award, discussions as to the drafting of the order took place as normal. However, upon further information coming to light, the wife challenged the award on the basis that there had been fraudulent non-disclosure by the husband. The most substantial allegation was that the husband had misled the expert appointed to value the relevant companies. The husband refuted the allegations raised.

Conclusion

The court agreed with the wife that the husband had indeed misled the expert and the court in his evidence and as such went behind the award to provide the wife with more capital, seeking to ensure that she received what she would have done but for the husband’s fraudulent non-disclosure.

It was found that the husband had failed to disclose information that was material to the outcome of the arbitration, namely company accounts which produced very different figures from those given to the single joint expert and the arbitrator. As a result, it was concluded that the wife should receive £1.16 million pounds more, plus £200,000 in respect of her costs.

This case serves as a reminder that while arbitration can expedite the resolution of family matters, it cannot override the statutory principles governing financial remedies. Parties engaging in arbitration must provide complete and accurate disclosure of their financial circumstances, and that duty is ongoing until such a time that an order is made.