Divorce, fraud and the Supreme Court: Marilyn Stowe

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June 10, 2015

BBC Radio 5 Live – Adrian Chiles – 8 June 2015

On Monday, a Supreme Court hearing grabbed headlines nationwide. To make sense of it, Stowe Family Law was approached by numerous media outlets for comment.

Senior Partner Marilyn Stowe appeared on various BBC outlets including BBC Breakfast and BBC Radio 5 Live.
Meanwhile, Paul Read, a partner in our London office, appeared on Sky News to discuss the hearing.

For more information, click here.

 

TRANSCRIPT OF INTERVIEW

AC:                Adrian Chiles

MJS:             Marilyn Stowe

 

AC:             Two women who believe they should have been awarded bigger divorce settlements are appealing to have them overturned in the Supreme Court today, Alison Sharland and Varsha Gohil both say their ex-husbands misled judges about how much they were worth.

AC:             Marilyn Stowe is a divorce lawyer, fee earner admired in equal measure from what I can tell, Marilyn. So are you hanging on the Supreme Court’s every word now on this, is this important?

MJS:              It is important, of course it’s important. The obligation from both parties is to give full, frank, honest and continuing disclosure right up to a court order being made. And it’s on both parties so that both parties can decide what is a fair and reasonable split in the circumstances and in this case he didn’t do that and my view is the order should be set aside and the thing heard again.

AC:              How often do you sense that people being honest with each other or are people just accidently, habitually accidently on purpose forgetting about £20,000 in a bank account here or £20 million in a yacht somewhere?

MJS:              Well, you sort of get a bit used to it and you sort of can sense when something is not quite right.  A company search might throw up several companies that haven’t been disclosed. I once helped write a script for the Archers and I was given free reign and what I did was, I suggested that the naughty man should run a partnership alongside a limited company and hide the profits out of the limited company…

AC:              It’s quite technical…

MJS:              It is quite technical but actually what it meant was publically available information didn’t actually show what was really going on and that was based on several cases that I’ve been involved with in the past. So, these things do go on and people are fraudulent and people don’t disclose and when it gets found out, my view is it should be back to square one, start again and the person who hasn’t made the disclosure should be responsible for all the costs thrown away.

AC:              But in this case, it’s not as though he’s squirrelled something away, it was that there was flotation which he neglected to mention, does that amount to the same thing?

MJS:              As I understand it, he actually told the court that there was no prospect of an imminent flotation when in fact it was ongoing at the time and the wife settled on the basis that the flotation was years ahead in the future and therefore compromised her claims on that basis. So the question really is, would it have made a difference or wouldn’t it? But even if it hadn’t, it’s the principle of justice isn’t it? It’s got to be seen to be done and if you’ve compromised the claim on the basis of fraudulent non-disclosure or you’ve been fraudulently misled, then surely the thing should be set aside and start again.

AC:               So is it the principle that you can go back and rewrite the order, is that what’s at stake here? Does that happen very often?

MJS:              First of all you’ve got to actually be able to satisfy the court that there has been fraud and in the other case that Clive Coleman was talking about, here she said there must have been a fraud but she have the evidence to actually satisfy that point and therefore the Court of Appeal said that her Order couldn’t be opened again. And that’s what the Supreme Court is looking at as well, the extent to which there has to be actual evidence of fraud so that they can then make the decision to set it aside.

AC:              So it sounds like the kind of Order where a “Clean Break” is in place, so if it hadn’t been a clean break there wouldn’t have been a problem here because then she would have been entitled to a percentage of future earnings until the kids are old enough or until whatever…

MJS:              I suppose the whole point is, does fraud absolutely subvert the basis of the order? And if it does subvert it, then what happens? And that is what the Supreme Court is looking at so that everybody has guidance about what will happen in the event of fraud. Lots of things happen post a court order being made, somebody could die for example, or somebody could remarry, or win the lottery or so on and so forth, and then the court then has a wider discretion as to what to do, but this is fraud, out and out fraud and the issue here is as a consequence of fraud, what should happen? Should the order continue? Irrespective of whether or not a judge takes the view that it wouldn’t have made a different order, or is the whole thing subverted and should it be set aside and start again?

AC:              So are there many case out there just waiting to be reheard?

MJS:              Well, I think so because we get a lot of people who say “Oh I never got legal aide, I decided to deal with things amicably, I’m really sorry that I settled on this basis, is there anything I can do about it?” And in 99% of cases there actually isn’t. But in fraud, if you can prove fraud well then that’s a different thing and it may well be that there is something you can do about it.

AC:              Thank you very much, Marilyn Stowe.

MJS:              My pleasure.