Well, this is an interesting one. The facts: husband arranges a joint re-mortgage of the matrimonial home, so that he can pay his debts. Husband persuades wife to join with him in the execution of the mortgage, but fails to tell her that he is having an affair, which subsequently leads to the breakdown of the marriage and divorce. Wife then falls into arrears with the mortgage and the mortgagee seeks possession. Court grants possession order and wife appeals, claiming undue influence or misrepresentation.
The Court of Appeal found that the husband's concealment of his affair from his wife did amount to the exercise of undue influence against her, sufficient to vitiate the re-mortgage transaction, as between them. Mr Justice Briggs:
"It is evident that Mrs Hewett's decision to accede to her husband's request was based upon an assumption on her part that he was as committed as she was to the marriage, to the family and to the preservation of their home life in the future. The truth was that he had already embarked upon an affair which, although by no means a certainty, carried with it the serious risk that it would lead in due course to Mr Hewett's departure from the family and withdrawal of both emotional and financial support, as eventually occurred. On that analysis of the decision facing Mrs Hewett, I consider that Mr Hewett's affair cried out for disclosure."He went on to say that it did not matter whether the wife's decision would have been different if disclosure had been made:
"In my judgment the question whether Mr Hewett's affair was a material fact calling for disclosure is to be decided by an objective test, rather than by asking the hypothetical question whether disclosure would have made all the difference to his wife's process of decision making. The issue may be best addressed by asking whether a solicitor, consulted by Mrs Hewett for advice about the wisdom of the transaction, would have thought it relevant to know that her husband was, while asking for her unqualified trust, at the same time conducting a clandestine affair. There can in my view only be an affirmative answer to that question."Accordingly, the appeal was allowed and the mortgage was set aside. The mortgagee can, of course, still proceed against the husband's interest in the property, which the wife purchased from his trustee in bankruptcy for £1.
If you find the decision somewhat unfair so far as the mortgagee is concerned, I should explain that during the original trial they acknowledged that, having been aware that the re-mortgage was designed to secure payment of debts owed by Mr Hewett, rather than the Hewetts jointly, they were on notice of the risk of the exercise of undue influence by Mr Hewett against his wife.
All in all a common sense decision, although one that is obviously dependent upon its fairly unusual facts.