Fri | Sep 22, 2017

Disclosure in Matrimonial proceedings

Published:Monday | October 19, 2015 | 10:00 AM

Couples usually discover how little they actually know about each other's assets after they separate. Quite often, that ignorance hinders one party (usually the wife) in her bid to either get a reasonable maintenance order or property settlement.

Such was the case in Chang v Chang [2012] JMSC Civ 56, in which the wife claimed an interest in property belonging to the husband and the court then ordered the husband to file "an affidavit disclosing and identifying full particulars of Mr Chang's property - the nature and full value of assets both real and personal whether within the jurisdiction, or outside and whether the same are held in his own name or jointly with others or by nominees or otherwise on his behalf". (The Privy Council reinforced the point that disclosure may be necessary in matrimonial proceedings in the case of Bromfield v Bromfield [2015] UKPC 19.)

Chang's case was headed for trial when that application was made. However, in cases in which court proceedings are not in train because the parties are attempting to arrive at an amicable settlement, a request for disclosure might also be made to ensure that the settlement is fair and reasonable. Of course, without the threat of a court sanction, parties may be more inclined to conceal information or otherwise distort the truth.

 

MODEST SETTLEMENT

 

On October 14, 2015, the UK Supreme Court delivered a judgement in the case of Gohil v Gohil [2015] UKSC 61, which directly touches on the question of disclosure in matrimonial property cases. In that case, the wife commenced divorce proceedings in 2002 and also made financial claims. In response, the husband, a solicitor, stated that his perceived wealth was really clients' assets. At a financial dispute resolution, the wife agreed to settle that claim and accepted what was considered to be a modest amount of £270,000. That settlement formed the basis of an order made in 2004.

Importantly, the 2004 order contained a recital that "the [wife] believes that the [husband] has not provided full and frank disclosure of his financial circumstances, but is compromising her claims in the terms set out in this consent order despite this in order to achieve finality". In 2007, the wife filed an application in the divorce proceedings to set aside the 2004 order on grounds that the husband had fraudulently failed to disclose assets.

The proceeds were delayed because, in 2008, the husband was charged for money-laundering offences. He was committed to serve 10 years in prison in 2011 and asset confiscation proceedings commenced.

In 2012, the wife's application was heard and the first instance judge granted her order. The Court of Appeal reversed that order on grounds that there was no material evidence to support the wife's allegation of non-disclosure. In fact, the wife had relied on some evidence from the criminal proceedings that had come from sources outside the UK, so that was inadmissible; but there was also evidence given by the husband's father in whose name the son had placed some assets.

On appeal to the Supreme Court, the wife succeeded. The ruling by the first instance judge was reinstated, the 2004 Order was set aside and the matter was remitted for the wife's application for further financial provision to proceed.

Although there are different legislative provisions in the UK in relation to financial proceedings, and there is no equivalent of the financial dispute resolution in Jamaica, family proceedings often go to mediation at the Dispute Resolution Foundation and settlements reached there become court orders. It seems likely that an agreement reached in Jamaica in reliance on fraudulent disclosure may be subject to the same fate as Gohil's agreement.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.