Non-disclosure is off limits
Many ex-spouses will be having sleepless nights following a landmark Supreme Court decision that divorce settlements can be re-opened if the court was misled by non-disclosure.
In Sharland v Sharland [2015] UKSC 60, two ex-wives won the right to have their divorce settlement re-heard in light of new evidence that their ex-husbands failed to fully disclose their financial assets.
Delivering judgment, Lady Hale, deputy president of the Supreme Court, said the ex-wife “had been deprived of her right to a full and fair hearing of her claims”.
Jo Edwards, chair of family lawyers’ group Resolution, says: “This decision has significant implications for other cases where assets are suspected of having been concealed, and could see many other recently finalised cases being reopened.
“It is arguably in these cases, rather than the dealings of the multi-millionaire Sharlands, that the importance of this judgment lies. A few extra million pounds may be felt objectively to make little difference to Mrs Sharland's standard of living, but access to a share in concealed assets could make a huge difference in smaller money cases that are heard by judges every day.”
Toby Hales, partner at Seddons, who represented one of the wives, Varsha Gohil, says: “The court emphasises that this duty [of disclosure] is owed by the litigant to their spouse but also to the court itself, even if the parties have, ostensibly, reached agreement about their matrimonial affairs.
“Agreement reached on the basis of lies, misrepresentation and deception is no agreement at all, and will not be allowed to stand.”
Charlotte Bradley, head of family law at Kingsley Napley, says: “There is no time limit on claims being re-opened.
However, she warns that "while many may feel their exes hoodwinked them financially during their divorce, finding the evidence of non-disclosure from the time, remains the challenge. Only if new information about a former spouse’s assets has come to light will they have the chance to overturn the original consent order”.
The ground-breaking case coincides with renewed calls by Resolution for divorce reform, after research found fault-based divorce petitions cause more than a quarter of divorcees to make false allegations.
No-fault divorce was the subject of a Ten Minute Motion in the House of Commons this week, brought by Conservative MP Richard Bacon and supported by Resolution.
Under English law, one person must accuse the other of adultery or unreasonable behavior to have their divorce granted within two years of the marriage breaking down. According to YouGov research commissioned by Resolution in June, 52% of divorce petitions are fault-based, alleging either unreasonable behavior or adultery, and 27% of couples who asserted blame admitted the allegation of fault wasn’t true but was the easiest option.
Jo Edwards says: “This charade needs to be ended.”
“Fault-based divorce makes it harder for couples to successfully resolve their disputes out of court—it introduces an element of conflict that, as a practicing divorce lawyer and mediator, I have seen derail even the most amicable divorce process.”
No-fault divorce was provided for in the Family Law Act 1996 but never enacted.
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