Alison Sharland and Vasha Gohil both received financial settlements in English court cases. In the lower courts it has been held that the husbands both misled the court about the extent of their wealth but despite that fact, the Court of Appeal refused to overturn the earlier court orders settling the cases.
There is concern amongst English family lawyers that as things stand, the rules governing disclosure of information in family cases do not carry sufficiently severe penalties. As a result a dishonest litigant may well decide that it is worth the risk and will make incomplete disclosure.
In Scotland, family lawyers do face similar difficulties. If someone is determined to misrepresent their financial position then it can seem as though the other party is destined to miss out. Family lawyers will advise clients that the best course of action is to make open disclosure in respect of all matrimonial property. Matrimonial property is everything (with the exception of gift or inheritance) acquired during the marriage and before separation. Clients generally follow this advice and negotiate a sensible settlement. And most cases tend to conclude with a separation agreement rather than a court ordered settlement.
If it later turns out that the separation agreement proceeded on the basis of misrepresentations then there is scope to challenge it. This is made on the basis the agreement was not fair and reasonable at the time it was signed by the parties. It is difficult to succeed with such a challenge but if there has been fraud by one party to the agreement, that would be a decent basis for a challenge.
When a case ends up in court, orders can be obtained for disclosure of information. It is a tricky process and hopefully the Supreme Court guidance due later in the year will also prove useful to the courts in Scotland.
Our family law experts can provide advice on this and many other issues, to find out more contact a member of our team.
