Sharland And Gohil: A Right To A Full And Fair Hearing

This week, in two landmark cases, Alison Sharland and Varsha Gohil won their appeals to the Supreme Court and have been permitted to have the final orders determining their financial applications against their ex-husbands set aside due to non-disclosure.

The decisions have already been heralded as opening the floodgates to litigation in the family courts, but what do these decisions really mean in practice?

What is a set aside application?

Unsurprisingly, a final order should provide finality in respect of the financial position for parties to a divorce. However, a set aside application can be made where there has been fraud, mistake, undue influence or a failure to provide full and frank disclosure. This will ensure that the applicant is afforded the opportunity to have a full and fair hearing of their financial claim.

What level of non-disclosure needs to be established?

The non-disclosure must be material, and so of significant weight in the context of the parties' financial circumstances.

Will the decisions apply to all final orders?

The decisions will apply to final orders made on the basis of consent or those imposed by a judge at the conclusion of a final hearing.

Both Sharland and Gohil were originally settled as consent orders, on the basis of negotiation and agreement reached between the parties. In reaching an agreement the wives had each compromised their claims so as to achieve finality. However, the husbands' fraudulent non-disclosure invalidated the basis on which these agreements had been reached.

The decisions will also apply in cases where the final order is made by a judge at the conclusion of a final hearing. This is because throughout the proceedings each party has a duty to provide full and frank disclosure to the court. The court, in turn, has a statutory duty to conduct an independent assessment considering factors including income, earning capacity, property, financial needs, standard of living and conduct of the parties. In cases where there has been material non-disclosure, neither duty has been, or can be, properly carried out.

The court's duty to carry out an independent assessment applies whether or not an agreement by negotiation has been reached between the parties.

What evidence is permissible in an application to set aside an order?

The decision in Gohil has confirmed that the applicant in a set aside application does not need to demonstrate that the evidence which is being relied upon could not have been...