Non-disclosure in Divorce Cases: Anita Shepherd – head of the Family team at Davis Blank Furniss – Discusses Alison Sharland and Varsha Gohil’s Victory at the Supreme Court.

I have been waiting apprehensively for the Supreme Court’s decision in the high profile cases of Sharland and Gohill which have had much press coverage in the last few days.  As a family lawyer always striving for fairness and justice for my clients, I am delighted with the decision.  I hope it sends a strong and clear message to all divorcing spouses that you need to provide full and frank financial disclosure.

These landmark decisions lead to procedures being clarified.  In this instance, where a spouse or civil partner alleges that the other has failed to make full and frank disclosure of their assets.  To date, the onus has been on the spouse suspecting the other spouse of non-disclosure to embark on a costly investigation which they rarely can afford.

In the case of Sharland, the wife sought an equal division of the assets after a long marriage during which they had three children.  After reaching a settlement (recorded in a consent order approved by the divorce courts) with her husband, which the wife believed afforded her an equal share of the assets of the marriage, she discovered that her husband had misled both her and the court as to the true value of his shareholding in his IT company; the majority of which he retained as part of the settlement.

The wife applied to the court to overturn the settlement but was not successful – despite both the High Court and Court of Appeal finding that the husband had indeed misled her and the court.  Nevertheless, the Court ruled that the wife should be held to the agreement. She sought permission to appeal to the Supreme Court and – upon permission being granted – the case was listed for consideration with the case of Gohil.

In the case of Gohil, the wife reached a settlement (recorded in a consent order approved by the divorce courts) with her husband in 2004.  The circumstances were that the husband claimed that he had modest income and assets, despite the wife’s belief that the assets of the marriage should have been substantial.  The husband was in a position of control whilst holding the purse strings of the marriage.  This resulted in the wife settling for £270,000 along with child maintenance and a modest maintenance allowance for herself.

It later transpired that the husband was enjoying a standard of living which far exceeded the level he had disclosed within the divorce proceedings.  In 2006, the wife began a lengthy legal battle to set aside the original settlement agreement (consent order) which was halted whilst the husband was arrested, charged and convicted of a number of money laundering offences.  This unravelled the deceit in the divorce proceedings.  Finally, in 2012, the wife was successful in having the original settlement set aside which the husband subsequently appealed.  After a long road for Mrs Gohil, the Supreme Court has now overruled the Court of Appeal restoring the original High Court decision which was in her favour.

The decisions in these two cases will have implications for the future.  One hopes they will significantly improve the procedure for spouses and practitioners to deal with situations like these whatever the financial means of the spouses are.  These two ladies thankfully had the financial capability to fight for justice, but this is not always the case.  So anything that the court and court process can do to level the playing field for spouses from all sections of society then the fairer the process will be.

To summarise, these two cases have now redefined the law in cases of non-disclosure in that:-

  • If the court finds a party has intentionally failed to disclose assets, it will be presumed that full and frank disclosure would have led to a different financial order being made unless the non-discloser proves otherwise (shifting of the burden of proof).
  • If the court finds a party has accidentally or negligently failed to disclose assets, it is for the complainant to persuade the court it would have made a different financial order.
  • In disputed cases, the issue of whether there has been non-disclosure requires a trial of the facts and the judgement can still stand even if the trial judge relies on inadmissible evidence.

Changes to the procedure to set aside financial orders will need to be made by way of amendments to the Family Procedure Rules so we will now need to wait and see what the amendments consist of.

I do hope that any changes that come about as a result of these decisions help to assist everyone in society who may find themselves to be the victim of such unfairness and not just those spouses who can afford to fund litigation.

My team and I would be happy to assist or advise should anyone wish to review their divorce settlement where you may have well-founded concerns that there was non-disclosure on the part of the other spouse.

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