The Supreme Court has handed down judgment in the conjoined appeals of Gohil and Sharland which provide definitive guidance on the law relating to the set aside of financial orders in divorce proceedings.

James Turner QC and George Gordon appeared on behalf of the Respondent Husband in Gohil v Gohil [2015] UKSC 61.

In Gohil the unanimous judgment of the Supreme Court is given by Lord Wilson with a supplementary judgment from Lord Neuberger. The judgment is concerned with a first instance decision in which Moylan J purported to justify the setting aside of a consent order on the basis that he was satisfied either:

a) That there had been material non disclosure in accordance with the test set out by the House or Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424;

and/or

b) That there was new evidence which was such as “would probably have an important influence on the result of the case” as in Ladd v Marshall [1954] 1 W.L.R. 1489.

Moylan J expressed himself as satisfied in respect of both of the above tests and so set aside the original consent order and went on to make directions for a re-hearing of the Wife’s financial claims (at a 15 day hearing).

The Court of Appeal (Gohil v Gohil (No 2) [2015] Fam 89) allowed the Husband’s appeal on the basis that the Ladd v Marshall guidelines cannot be used to found an alternative jurisdiction on which the court may set aside an existing order simply on the ground that fresh evidence exists which is of sufficient quality to justify reception into the court process. The Court of Appeal went on to hold that the Judge had failed to make a positive finding of material non disclosure and that such a finding was not open to him on the admissible evidence before the court (certain evidence from criminal proceedings relied on by Moylan J was subsequently ruled inadmissible in any proceedings other than the criminal proceedings for which the evidence was originally obtained on the basis that the documents or their contents had been obtained from sources outside the UK pursuant to requests made by the Crown Court under the Crime (International Co-operation) Act 2003 and section 9(2) of that Act precludes any use of them other than that specified in the requests: Gohil v Gohil [2012] EWCA Civ 1550, [2013] Fam 276).

However the Supreme Court has reversed the decision of the Court of Appeal, holding that even though Moylan J was wrong to identify a particular relevance for the principles propounded in Ladd v Marshall he was correct in also concluding that there had been material non disclosure in accordance with the test from Livesey; even if the Judge had been aware that certain of the evidence on which he based his conclusions was inadmissible (as it was subsequently held to be) he still would have reached the same conclusion as to material non disclosure on the basis of his findings in respect of the remaining admissible evidence.

The Supreme Court judgment in Gohil also deals with the following issues (set out here in bare summary only):

• Procedural guidance confirming that an application to set aside a financial order of the Family Court on the ground of non-disclosure may be made to that court at the level at which the original order was made.

• Discussion of the impact of a recital within the original consent order which stated that the Wife believed that the Husband had not provided full and frank disclosure of his financial circumstances (disputed by the Husband) but that she was compromising her claims in the terms of the consent order in order to achieve finality. In short the Supreme Court has held that the Husband’s duty of disclosure is to the court and so such a recital has no legal effect because one spouse cannot exonerate the other from complying with that duty.

• Discussion of whether the principles from Ladd v Marshall apply in circumstances where, in the proceedings at first instance, a spouse has raised her suspicion of non disclosure but has declined to pursue her suspicions to a final hearing and instead has agreed the terms of a consent order; and whether any such evidence which would have been available at first instance may be inadmissible on a set aside application.

• Discussion of the application of adverse inferences in set aside applications.

• Articulation of the appropriate test when an appeal court considers the safety of findings based in part on inadmissible evidence.

The Sharland judgement may be found here.