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Is there something I should know? Disclosure and non-disclosure in the family court: Part 1

Date:25 JUL 2016
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In NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), [2012] 1 FLR 1211 Mostyn J described non-disclosure as ‘the bane which strikes at the very integrity of the adjudicative process’ (para [1]). Without full disclosure, the court ‘cannot … lawfully and properly exercise its powers’ (Lord Brandon in Jenkins v Livesey (Formerly Jenkins) [1985] FLR 813, at 822) and is ‘thrown back on inference and guess-work within an exercise which inevitably costs a fortune and which may well result in an unjust result to one or other party’ (NG v SG, para [1]). As the Court of Appeal stated in Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246, at para [67], ‘the starting point of every inquiry in an application [for] ancillary relief is the financial position of the parties. The inquiry is always in two stages, namely computation and distribution; logically the former precedes the latter.’ How can a court proceed to distribute assets fairly if it has not been told what they are? On 14 October 2015 the Supreme Court decisions in Sharland v Sharland [2015] UKSC 60 and Gohil v Gohil [2015] UKSC 61 clarified the correct approach of the courts when faced with an application from a spouse, following an order made by consent, alleging non-disclosure by the other spouse. Since then, there has been press speculation that the leak of millions of documents from law firm Mossack Fonseca – the ‘Panama Papers’ – might precipitate applications to the courts concerning hidden assets.

This is the first part of a two-part article about non-disclosure and the family court. This first part sets out the nature and origin of the duty of disclosure, to whom it is owed, whether different criteria apply if parties are represented, the requirement of disclosure where agreement has been reached, the utility of a protective recital in a consent order, the routes of redress following a discovery of non-disclosure (set aside or appeal), the applicability of the Ladd v Marshall principles (fresh evidence on appeal), and the error into which the Court of Appeal fell in Gohil.

The full version of this article appears in the July 2016 issue of Family Law. 

Online subscribers can access the article here

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