Two recent decisions by the Supreme Court, Gohil (Appellant) v Gohil (Respondent) and Sharland (Appellant) v Sharland (Respondent), have allowed both wives to challenge their divorce settlements after the Court found that their husbands had misled the courts in the original hearings by not providing full and frank disclosure.
In the case of Gohil v Gohil the parties had entered into a Settlement Order in 2004 which included a Recital which set out the fact that the wife believed that her husband had not provided full and frank disclosure. In 2007 the wife sought to set the Order aside on the ground that the husband had fraudulently failed to disclose his assets. The wife relied on information obtained during the husband’s Crown Court Trial for fraud. The Court allowed her application to set aside the Consent Order in 2012. The Husband appealed to the Court of Appeal. The Court of Appeal allowed the husband’s appeal on the basis that the wife’s evidence was inadmissible. The wife then appealed to the Supreme Court and the Supreme Court allowed the Order to be set aside. The conclusion was that, even if he had referred only to the evidence admissible before him, the judge would still properly have found the husband to have been guilty of material non-disclosure in 2004. The Court commented that there needs to be a “clear procedure formulated to set aside financial orders”. The Court also concluded that the Recital had no legal effect in a financial order and that the husband owed a duty to the Court to make full and frank disclosure. The 2012 Order was reinstated and the wife’s claim for further financial provision could proceed.
In the case of Sharland v Sharland, the wife appealed the decision that, despite a deliberate failure by the husband to give full and frank disclosure, the order which would have been made had the disclosure been made would not have been substantially different and therefore the wife’s application to set aside the Agreement was dismissed. The Supreme Court allowed the wife’s appeal on the basis that the husband had been dishonest during the course of the original hearing. The Supreme Court ruled that in this case “it is clear that the judge would not have made the order he did, when he did, in the absence of Mr Sharland’s fraud, and the consent order should have been set aside.” The Court said that it was not possible for an agreement between the parties in ancillary relief proceedings to oust the jurisdiction of the Court. The Court directed that the consent order should not be perfected and that the matter be returned to the Family Division for further directions.