October 19 2015

The power of the Court

Amanda Loumansky Middlesex UniversityFamily law expert and Senior Lecturer at Middlesex University Dr Amanda Loumansky details the outcome of two landmark conjoined divorce cases.

The Supreme Court has finally handed down judgement in the conjoined cases of Gohil v Gohil and Sharland v Sharland. The cases were heard together but judgment on the two appeals was given separately and resulted in a landmark victory for both the women. In both cases the Supreme Court overturned a decision of the Court of Appeal.

Gohil v Gohil

To briefly recap the facts in Gohil v Gohil, which are complex and at times confusing, the parties were divorced in 2004 and a subsequent financial order was made against the husband in favour of the wife.  The husband appealed to the Court of Appeal requesting that the Court set aside “part of a financial order which, by consent, Baron J had made against the husband in favour of the wife on 30 April 2004, namely the part by which she had dismissed all the wife’s remaining claims against him for capital provision”. The husband’s application was successful.  As the Supreme Court noted in its judgment: “The effect of the order of the Court of Appeal was therefore to prevent the wife from asking the court to revisit the level of capital provision made by the husband for her under the order dated 30 April 2004.” 

The effect of these landmark judgments is to send a very clear message that the Supreme Court will not allow spouses to use the machinery of the law to conceal the true value of their assets.

On over-turning the lower court’s decision the Supreme Court acknowledged the difficulties still faced by the wife as the husband was now in prison having been convicted of large-scale money laundering.  Indeed, confiscation proceedings which were “pending against the husband in the Crown Court… will need to investigate not only the extent of the husband’s current assets but the extent to which they represent the proceeds of his crimes. For, although the court has jurisdiction to order a transfer to the wife of property so tainted, it will ordinarily, as a matter of public policy, decline to exercise its jurisdiction to do so… and in the present case the wife has made clear that she will not ask it to do so”.

Photo by Live4Soccer (CC 2.0)

Photo by Live4Soccer (Creative Commons 2.0)

Sharland v Sharland

The judgment in Sharland v Sharland again found in favour of the wife although the facts were slightly different. Here the husband and wife reached a financial agreement but, before it was sealed, the wife applied to the court to have it set aside on the grounds that the husband had deliberately misled the court with regard to his finances and that if the court had known the true worth of his assets this would have made a material difference to the amount of the financial settlement between the parties. However the wife was not successful and the order was sealed. She appealed to the Court of Appeal who, by a majority dismissed, her appeal.

Finding in her favour the Supreme Court reminded the parties that “unlike ordinary civil proceedings, it has always been the case that the divorce court retains jurisdiction over a marriage even after it has been dissolved. While it is now possible for the court to achieve a clean break between the parties, the issue raised by an application to set aside for fraud, mistake or material non-disclosure is whether it was consistent with the court’s statutory duties so to do”.  However the court would be reluctant to use its power in support of “parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed”.  

The effect of these landmark judgments is to send a very clear message that the Supreme Court will not allow spouses to use the machinery of the law to conceal the true value of their assets. Those who attempt to do so should be aware that the power of the court is limitless and there is no hiding place.

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