The recent Supreme Court judgments in the cases of Gohil and Sharland made it clear that courts will not tolerate people lying about their financial position when dealing with finances related to their divorce. The media reported the possibility of divorce settlements being re-opened up and down the land, but I'm not sure about that. If you are divorced and a few years later your ex-husband or ex-wife’s financial position seems much better than you would have expected, what can you do? To start with, you do need to have some evidence of your ex-spouse’s current position rather than just a feeling that they have not told the truth.
At TWM, we regularly advise individuals who have found out something about their ex-husband or ex-wife’s financial position that they were not aware of at the time of the divorce or who are looking to vary maintenance upwards or downwards due to a change in circumstances. In these scenarios it is often really useful to spend some time with a family solicitor to explore whether it is worth taking any further action. Ahead of any such discussions, if you think that your ex-spouse has not told the truth, you will need to get together the following information:
1. A copy of the order or consent order setting out the financial settlement. If you do not have this you could get it from your previous solicitors or it can be obtained from the court.
2. Financial information from the time of the divorce. If you entered into a consent order you and your ex-spouse will each have signed a statement of information about your financial position at that time. This is a crucial piece of evidence as it sets out what each of you represented your positions to be at the time. Again, if you do not have this document, your previous solicitors will be the best place to start. Solicitors generally keep their files for seven to ten years. If your divorce was dealt with more than ten years ago, your file may well have been destroyed. Unfortunately, the court is unlikely to have a copy of a statement of information for a consent order for a matter this old.
3. Some evidence of your ex-husband or ex-wife’s alleged wrongdoing. If they specifically denied having a particular asset is there now some evidence of them owning it? If they said that their shares in a company had no value, can you can show that the company has recently been sold for a significant sum? If they said that they were not working but you believe they are, can you find a Linkedin profile or something similar showing that they are working and have been working throughout?
The critical point to prove is whether it seems that your ex-husband or ex-wife lied or misrepresented their financial position, or whether their position has simply improved since you reached agreement or an order was imposed on you. We would need to investigate whether you had full and frank financial disclosure from your ex-spouse or whether you had decided not to pursue this.
With increases in values of properties or companies, it can sometimes be difficult to determine whether the asset has just grown in value since the date of the settlement with the person having told the truth previously, or whether there was some information that was known at the time that was not disclosed.
If you are dealing with your divorce now, this case underlines the need to ensure you do give full information to avoid being accused of misrepresentation and risking having your case reopened in future.
If it seems that your ex has lied, it may be possible for a previous order to be set aside. If it seems you would be unlikely to succeed in this kind of application it may be a case where a variation of maintenance may be appropriate or it may be what is known as “Barder” event where a value is so significantly different from what was expected (even genuinely) at the time of settlement, that it is appropriate to re-open the financial agreement. It is much more difficult to re-open an agreement on this basis than on the basis of someone having lied, because of taking into account natural market fluctuations.
We are always happy to offer an hour or two’s advice to help put your mind at rest as to whether it would be appropriate to revisit your order in any way.
Contact Lindsey Alexander in our Epsom office on 01372 729555 or email: email@example.com
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