Sharland, Gohil - Lord Neuberger sums it up on non-disclosure
Supreme Court judgments were handed down last week in Sharland v Sharland  UKSC 60 and Gohil v Gohil  UKSC 61, and much legal commentary ink has been spilt over the past few days in analysing them. The two cases are best summed up by Lord Neuberger in his short judgment in Gohil. He agreed with Lord Wilson and the other five SCJJ with whom they sat, and added:
' ... where a party's non-disclosure was inadvertent, there is no presumption that it was material and the onus is on the other party to show that proper disclosure would, on the balance of probabilities, have led to a different order; whereas where a party's non-disclosure was intentional, it is deemed to be material, so that it is presumed that proper disclosure would have led to a different order, unless that party can show, on the balance of probabilities, that it would not have done so.'
If a spouse does not disclose because (like the wife in Livesey (formerly Jenkins) v Jenkins  AC 424,  FLR 813, who did not know she had to tell everyone she was about to remarry), s/he does not know, then it is for the spouse who seeks to set aside the order to prove materiality of non-disclosure.
If a spouse deliberately hides material facts from the court - and the duty is owed to the court, as in Livesey - then fraud is presumed and the order is set aside, unless the spouse can show that the hidden facts would have made no difference ('see per Lady Hale in Sharland v Sharland, paras 29-33', says Lord Neuberger).
Common law procedure
I think Lady Hale was a bit stronger on the materiality point than Lord Neuberger cites, but for most practical purposes, where non-disclosure may vitiate an order, Lord Neuberger's § is a helpful summary of the two cases. Non-disclosure is but one (albeit the principle) aspect of setting aside: other examples include mistake of law by the court, or an order made without jurisdiction - although either of those might more correctly be an appeal - or procedural irregularity (but not bad legal advice: see Harris v Manahan  1 FLR 205, CA). The Barder supervening event jurisdiction also remains very much alive: Barder v Barder (Caluori Intervening)  AC 20,  2 FLR 480 (an application for permission to appeal out of time where events have occurred since the order which undermine a fundamental assumption on which it was based).
I am pleased that Briggs LJ was right on the 'fraud unravels all' point (I thought he was). If people tell lies, it is much better if they are not allowed to get away with it ever. That becomes the law in this area of family proceedings. By contrast, if someone gets disclosure wrong but not because it was a lie, they may have defence to a set aside application. Either way, it's an application to set aside (ie not an appeal: the applicant is not saying the judge who made the original order got it wrong on the facts at the time. See Peek v Peek  1 All ER 297). The application is in the original cause or civil partnership application - see Sharland at §41 and Gohil at §18(c) - by the FPR 2010, Part 18 procedure.
An accompanying article will appear in the December 2015 issue of Family Law.
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