Sharland and Gohil – an opportunity to reopen consent orders?

Two landmark judgments in the Supreme Court this week (Sharland and Gohil) had people reaching for their consent orders in matrimonial finance and wondering how they may be able to open up proceedings to achieve a better settlement for themselves.

In Sharland the husband had deliberately told the valuers and the court, that the company he developed was not going to be sold until at the very earliest 3 years time. During the hearing the parties came to an agreement, which the Judge approved. However, before the consent order was sealed, it was reported in the media that the company was to be sold imminently. This meant the value of the company was substantially higher ($1000m) – a far cry from the original valuation of £88.3m and could, therefore, make a material difference to the £10m pay out to the wife which had been agreed.

The husband was convicted of fraud and the evidence from the criminal proceedings showed the lengths he had gone to hide his realisable assets of £35m.

A “Consent Order” within family proceedings, unlike ordinary civil proceedings, is made with the consent of the court as well as the parties. This can only be approved after there has been full and frank disclosure of finances.

What do you need to do if you suspect that there has been non-disclosure? You can either make a fresh action to set the aside the order or make an application to a judge at first instance in matrimonial proceedings.

If the non-disclosure was fraudulent or deliberate, then a consent order can be set aside as there is a presumption that the non-disclosure was material; the party who is guilty of this has to show that in fact it does not make a difference to the order and ask the court to make it anyway.

If the non-disclosure was negligent or accidental, a consent order can be set aside but, it is the aggrieved party who has to challenge this.

It’s always preferable that matrimonial claims are reached by agreement between the parties rather than battling in court. Future relationships between the parties can worsen and this is likely to have an impact on the children no matter how old they are. Returning the matter to court will be costly and one will need to weigh up whether it is worth reopening the case as the party challenging the non-disclosure, because it may not make any difference to the original settlement.

These two cases have extraordinary facts; it will not be every day that the CPS or the media are providing the evidence. In the majority of cases trying to prove/obtain evidence to show that non-disclosure has taken place will be problematic.