The Family Court has dismissed a husband’s allegations that his wife had fraudulently withheld information relating to IVF treatment in divorce proceedings.

The case involved a couple who had married in 1997. In 2000, the wife engaged in IVF treatment whereby the husband provided sperm to fertilise a donor egg.

Their first child (M) was born in 2001. Shortly afterwards, the couple separated. Their financial remedies claims were settled in 2002 by consent and included a term that the husband was to make periodical payments for M of £15,000 per annum.

During those proceedings, the wife was taking preparatory steps to have a further child. She paid to store the frozen embryos created with the husband’s sperm and took the necessary hormones for IVF.

Following the making of the 2002 order, the wife attempted again to have another child in the same way, but miscarried.

In 2004, the husband consented to provide his sperm for IVF treatment provided that the wife did not seek maintenance for the child.

A second child was born in 2005. Both children had profound learning difficulties. The wife could not cope financially and issued proceedings in respect of both children. A consent order was made in 2011. A consent order made in 2019 extended the term of maintenance for M until the conclusion of his tertiary education.

M died in 2020. In 2021, the husband applied to set aside the 2002, 2011, 2019 and 2020 consent orders based on fraudulent non-disclosure.

He made three allegations:

(1) that he had had no knowledge of the wife’s preparatory steps to have a child by IVF in 2002 and that her failure to disclose them in the 2002 hearing amounted to fraudulent non-disclosure

(2) that the wife had failed to disclose her miscarriage and that had amounted to fraudulent non-disclosure

(3) that his signature on the agreement with the IVF clinic in 2004 to provide his sperm had been forged, although he accepted that he had made an agreement to that effect.

The court dismissed the application.

It held that there had been no fraud, and even if there had been, the concealed matters would not have led either to a reasonable person withdrawing consent to any of the orders or to a significantly different order being made on any occasion.

The husband’s case was that had the judge in the 2011 hearing known about the wife’s miscarriage, the order would have been substantially different. That was absurd in circumstances where, in that same year, the parties had agreed to undertake IVF again.

As for the third allegation, it was an abuse of process for the husband to accuse the wife of forging his signature on a formal agreement, where he accepted that he had freely entered into the agreement. The husband’s application was dismissed and certified as totally without merit.

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Case Citations: C v O Family Court [2021] EWFC 86 Mostyn J

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