Getting to the truth

Family Law|November 26th 2014

When a Court of Appeal judge starts their judgment by saying that the case does not give rise to any issues of principle I naturally think that it will not be worth my while continuing to read the judgment and move on to the next law report.

Such was the case with Colborne v Colborne which appeared on Bailii last week, but I’m glad that I decided to give the report another look.

Lady Justice Black is, of course, correct that the case, which dealt with an appeal over the division of capital assets following divorce, does not give rise to any issues of principle, but that does not mean that it is of no interest.

In particular, I found that it is a good example of a judge getting to the truth of a matter, in the face of a party who was both determined to put forward his own version of the facts and less than forthcoming about disclosing his means. The case is also a good demonstration of why parties should make full and frank disclosure of all their financial circumstances, and of the consequences if they do not.

For the purposes of this post there is no point in going into the detail of the case. Instead, I’m going to draw attention to three things: the first two to do with the husband’s approach to the case, and the third to do with the consequences of that approach.

The first thing is the husband’s position regarding the wife’s contribution towards the family, explained by Lady Justice Black at paragraph 6:

“H considered that W had made little, if any, contribution to the family. His case was that she made no financial contribution and gave him no support, that he single-handedly brought up the children, and that her conduct caused emotional and psychological trauma. The judge [in the court below] did not accept this. He found that W contributed equally to the marriage in so far as H allowed. He was very critical of H, finding that he was the one applying emotional and psychological pressure, to his daughters and to W. He said that H was “a man who expects to get what he wants” and that he would “stop at nothing to ensure that he does”. He said that the allegations H made against W were “spiteful, wicked and done deliberately to upset W, both previously and now”.

Obviously, such findings could directly impact upon the wife’s share of the assets, but they can also do something else: influence the judge’s entire view of the husband’s evidence, as we will see in a moment.

The second thing relates to the husband’s disclosure of his means, or lack of it. At paragraph 24 Lady Justice Black stated:

“The judge’s mistrust of H comes over clearly from the whole judgment. It had a foundation in H’s failure to make full and frank disclosure as revealed by his responses to W’s questionnaire of 19 September 2013 and by cross-examination. Two orders for disclosure had not produced all the material required. The judge categorised H’s failure to provide bank statements and other documentary material in response to the first order as “a wilful refusal to provide the information” and noted that he continued to refuse to answer “reasonable questions” following the second order. By the first day of the hearing, documents were still missing. They were identified and some of them, 92 pages, were produced by H overnight. The judge was still not satisfied with the position and said “we only have a picture here of what H wants us to have and to see””

As a result of this, the judge at first instance found that there were considerable “missing assets” that the husband had failed to disclose.

But there were other consequences of the husband’s behaviour, and that brings me to the third thing I want to mention. The judge ordered him to pay the wife’s costs of £60,000 “because of the way in which he had approached the litigation”. The husband appealed against this order, although he did accept that his conduct should entitle the wife to an order that he pay 20 per cent of her costs. Lady Justice Black disagreed. Whilst she found that the husband’s approach did not generate the entirety of the wife’s costs, it did increase them significantly. Accordingly, she ordered him to pay 80 per cent of the wife’s costs.

All family lawyers will have come across financial cases where one party has sought to belittle the other’s contribution or has been less than forthcoming about their means – I certainly remember coming across these things regularly when I was practising. This case is a demonstration for anyone tempted to do either or both how the court will get to the truth of the matter, and the consequences of such actions.

Photo by Jason Borneman via Flickr

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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