Non-disclosure and misleading the court during divorce

Family lawyers constantly advise their clients that you have a duty to provide full and frank financial disclosure to the Court.  What is the position, however, if your spouse does not do so and purposely holds back or misleads the Court?  Surely you can take the matter back to Court and overturn the Order.  Two recent decisions would suggest not.

In the case of Sharland –v- Sharland 2014 EWCA, Mrs Sharland sought to take her matter back to Court after she discovered that her husband had kept vital information from the Court and her and had not been open and honest about his financial position.  She sought to ask the Court to consider the new information and to set aside the previously agreed Order.  The Judge Sir Hugh Bennet said,

“In my judgment had I known the facts which I now know, it seems to me inconceivable that I would  not have regarded them as relevant to the exercise of my discretion… The husband in the instant case laid a false trail (a) by his dishonest evidence and (b) by his failure to disclose documents exhibited to his affidavit of January 2013.” 

Despite these comments the Court would not set aside the Order and the Judge concluded that,

“Any Order which would have been made if proper disclosure had taken place would not have been substantially different from the heads of agreement incorporated into the draft unsealed Order which I approved.  Accordingly notwithstanding that the husband is guilty of nondisclosure, in all the circumstances I conclude that the nondisclosure was not material.” 

Mrs Sharland’s application to set aside the Order, therefore, was dismissed.  Mrs Sharland took the matter to the Court of Appeal, and although the Court of Appeal was sympathetic to Mrs Sharland, they were not inclined to intervene.

In the case of Gohil –v- Gohil 2014 EWCA Civ 274 Moylanj made findings about the husband’s material non disclosure at the time of the Consent Order in 2004.

When Mrs Gohil discovered the truth she sought to take the matter back to Court to set aside the Order.

When the matter was first before the Court the Judge was satisfied that the husband had failed to give full and frank disclosure of his true financial circumstances and set aside the previously agreed Order.  The Judge considered that there had been material non disclosure and took into account fresh evidence. Mr Gohil appealed and the Court of Appeal found that the Judge had not had jurisdiction to set aside an Order.

So despite Mr Gohil failing to provide full and frank disclosure, the original Order was not set aside by the Court of Appeal.

I understand that like Mrs Sharland, Mrs Gohil was also seeking permission to appeal to the Supreme Court.

Family lawyers will continue to watch these cases with great interest.

Holmes & Hills Solicitors in Halstead has team of specialist divorce solicitors providing expert divorce and separation advice from the firm’s seven offices in Colchester (Marks Tey), Braintree, Witham, Sudbury, Halstead, Tiptree and Coggeshall.