It certainly has been a busy couple of days. The Supreme Court’s decision to back Alison Sharland and Varsha Gohil in their bid to re-open their divorce settlements is unlikely to have escaped your attention.
Both the national and local media wanted to talk about the details of this case and what effect the ruling may have going forward. I was asked to discuss it on the BBC News TV channel, in the Financial Times and on eleven BBC radio stations across the country. Additionally, Neil Dring – one of Stowe Family Law’s team of solicitors – was interviewed by London Live about the implications of the Court’s decision.
The story prompted many questions about the financial aspects of divorce law and ITV’s This Morning show invited me to join presenters Phillip Schofield and Holly Willoughby in the studio to field some of those questions from viewers. What follows is an amplified version of the necessarily short period of time I had to discuss the issues which arose.
The first caller was worried that her partner had claimed he earned less than he actually did. It is sadly not unusual for people to undervalue their assets when facing the prospect of a divorce – as was demonstrated by the Sharland and Gohil ruling. People think that they are only dealing with their partner so they can get away with it. What they sometimes forget is that divorce is a serious process and lying in court can send them to prison. I recommended that the caller seek legal advice if only as a bare minimum to fully understand her position. I said that no-one could pretend that doing a case with a lawyer is the same as on her own.
You may think that it is simple to prove how much someone earns. Whilst that is true in most cases, for those who are self-employed, or someone who has another business alongside their main job, proving an exact income can be difficult. The best approach is to carefully go through the documents which disclose their finances (called a Form E) and check the assets to see if anything is missing. If you can, it may be a good idea to consult a forensic accountant. They are trained to uncover hidden assets or a solicitor to ensure the Questionnaire in response is good enough to deal with the deficiencies and thereafter to ask a Judge to make an order it is answered at the First Appointment.
Another caller believed her former husband had received more than he deserved in their divorce. I explained that there are many factors which a judge will take into consideration when it comes to financial settlements, such as the length of the marriage and the age of the parties. The judge will weigh up all these factors and make a decision. These factors can be found in Section 25 Mateimonial Causes Act 1973.
In order to set aside a decision, applicants have 21 days to appeal and must demonstrate that the judge was plainly wrong. As this week’s Supreme Court cases demonstrate, if a party has been dishonest about the extent of their finances and assets, it can affect the judge’s final assessment. However, when there is provable fraud in a case, the judge’s decision can be set aside. There is not always a sinister explanation. Sometimes a party will make an honest mistake in their disclosures. If their partner believes this is the case, it is up to them to convince the judge that the mistake is enough to set aside the original order.
The third caller was going through a divorce and claimed his wife had been unfaithful. He wondered how that would affect the financial settlement. Put simply, conduct is irrelevant. Unless there has been some very serious misconduct – I recall a case early in my career when one spouse stabbed the other in the neck – it will not have any impact on the judge’s decision when it comes to finance. Having an affair, however distressing it may be, is not considered sufficiently serious to affect a financial settlement. However living with someone or marrying them is important to take into account in the overall scheme of things.
Phillip Schofield asked me if I thought the English divorce system was fair. Whilst some may disagree, I had to say that I do. Our system is based principally on diving income and assets in order to meet the reasonable needs of the parties and that is a much better way of doing things than an automatic 50/50 split as to be found on the Continent.
On the sidebar of this blog is a link to my book, Divorce and Splitting Up which contains some 275 pages of information as to what to expect when considering relationship breakdown. It is available as an e book for 99p and the proceeds are all donated to The Children’s Society. My book contains far more information than could be dealt with in a few minutes on TV. It won’t make up for the appalling injustice done by the removal of legal aid for all but a very few, but it’s my effort anyhow. I hope it helps.