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Wife wins mortgage ruling

PUBLISHED: 09:24 25 March 2010 | UPDATED: 17:10 30 June 2010

A Norfolk mother has won a landmark court ruling that may give her judicial protection against her home being repossessed - because she was unaware her husband was cheating on her.

A Norfolk mother has won a landmark court ruling that may give her judicial protection against her home being repossessed - because she was unaware her husband was cheating on her.

Top judges ruled that Jayne Hewett was “unduly influenced” by her husband Darren Hewett, who had kept quiet about his affair when he persuaded her to charge his massive credit card debts against their family home, a breach of his “duty of fairness and candour”.

Mrs Hewett had reluctantly agreed to take out the substantial loan against their home in Colomb Road, Gorleston, in January 2004.

She had faced the choice of agreeing to the deal or saying no and holding on to her half of the already-mortgaged house, a move Mr Justice Briggs described as akin to having a “plank in a shipwreck”.

Mr Hewett swore on their children's lives that he would pay all future mortgage instalments and promised his wife “financial responsibility” in the future, said the judge.

But despite telling Mrs Hewett that he would end the affair when she found out about it in May 2004, seven months later he moved in with his lover, and divorce proceedings were finalised in 2006.

By then, Mrs Hewett was finding it increasingly difficult to make repayments to the loan company, First Plus Financial Group Plc.

Possession proceedings were begun in 2008, with the original loan amount of £38,000 having increased with interest to nearly £60,000.

At Norwich County Court, a judge rejected arguments that the loan was invalidated because of Mr Hewett's “undue influence” and “misrepresentation”.

But that decision was yesterday overturned at the Court of Appeal by Mr Justice Briggs, sitting with Lord Justice Leveson and Lord Justice Jacob.

“I am persuaded that Mr Hewett'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,” said the judge.

Mr Justice Briggs added that the affair was “plainly a material fact calling for disclosure” as Mrs Hewett had agreed to enter into the mortgage transaction because she believed her husband was as “committed to the marriage as she was”.

He said Mr Hewett was “guilty of a deliberate concealment of the affair” because he knew that if he had told his wife about it, she may not have consented to his proposal.

“It is evident from his forgery of his mother-in-law's signature on the consent form that Mr Hewett was prepared to stop at nothing to achieve his objective,” added the judge, observing that Mr Hewett was later convicted over that matter.

However Mrs Hewett may not necessarily be able to remain in her home, because a County Court judge will now have to decide whether First Plus is entitled to enforce the debt against Mr Hewett's former half share in the property. If that is the case, Colomb Road will have to be sold, although Mrs Hewett will not be as badly off.

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