Tag Archives: Tim Amos QC

Dishonesty in divorce

Tim AmosTim Amos QC considers dishonesty in financial proceedings on divorce, and whether collaborative law can ever be appropriate where there is a suspicion of dishonesty.

The cases of Mrs Sharland and Mrs Gohil have been much in the media recently. For those who have not seen the coverage, these two women were both financially hoodwinked in different ways by their respective husbands during divorce proceedings. Because of this, at the time both settled for less than they would have been entitled to, had they known the truth. Now the truth has been revealed, the Supreme Court has clarified the law to ensure that both of their settlements can be reopened and they can reach a fair resolution at last.

Due to the publicity, it is likely that more people will ask the Family Court to reopen settlements that they now know to have been built on deceit. Of course, the court has always had that ability: these cases were clarifying technical legal points that had held these two particular women back. There is a firm principle that on divorce, to get a final and binding order from the court regulating financial provision, each person must give full and frank financial disclosure. Anything less – and certainly any overt deception – means a settlement or court order cannot be considered truly final. It can always be open to attack on the discovery of evidence that the real situation was not as it was put across.

It is difficult to know to what extent financial dishonesty is prevalent in divorce. Where legal advisers – solicitors or barristers – are involved, one of their jobs is to request, collect and assess the appropriate evidence to advise the client of their legal position. When things don’t ‘add up’, they are queried – sometimes they are clarified, and sometimes not. If not, there may be court proceedings where the evidence is tested by cross-examination. However there are other ways for testing evidence, and the collaborative law and mediation processes are interesting alternative options.

One might think that collaborative practice and mediation are less rigorous processes for assessing the veracity of financial disclosure because they are less combative, gentler options for resolving disputes. However, I do not believe this is so.

The supportive atmosphere of collaborative law does not mean that it is soft on disclosure. As both participants are accompanied by their solicitors, there can be a frank discussion of disclosure matters, face-to-face, which often leads to insight not available through the arms-length processes of solicitor negotiation or court. An independent barrister brought in to discuss settlement parameters can also raise questions, and the former couple also has the opportunity to question valuation experts directly on their methodology and conclusions. Because the collaborative setting is less positional, there is more opportunity for people to react flexibly and realistically rather than being tempted to “stick to their guns” at all costs, which sometimes still happens in the court process. Potentially therefore, the questioning about financial disclosure during collaborative practice can be more intense than in a court situation, meaning mistakes and misrepresentations are perhaps more likely to be rooted out.

Likewise, a strong mediator will ask questions to ensure he or she fully understands the disclosure made, and will allow each person to ask the questions they feel necessary to be satisfied that the truth is out there. If they are not satisfied, they may withdraw from the process and seek a solution through the courts or otherwise. It is always sensible to take legal advice from a solicitor outside the mediation process, and this provides yet another safeguard against being deceived.

When it comes to financial disclosure, mediation and collaborative law are not easy options. Although it may perhaps be too late for Mrs Sharland or Mrs Gohil to take advantage of alternative ways to resolve their disputes with their husbands, for those just starting to consider the best way to get to the truth, collaborative practice and mediation are worth investigation.

t.amos@qeb.co.uk

What’s the best way to work out a prenup?

Tim AmosTim Amos QC discusses why the collaborative process works well for pre-nuptial agreements.

Pre-nuptial agreements are becoming ever more common in England & Wales. As people are marrying at an older age when they may already have significant assets, and perhaps having been married before, there is a trend towards setting out in advance how property and income will be managed in the event of a later separation. Further, marriage contracts and pre-nups have been an accepted and expected part of preparation for a wedding in many overseas jurisdictions for many years. As romance becomes a more international affair, it is simply a conversation more likely to crop up.

We have recently had clarification from the Supreme Court about how marital agreements are likely to be treated in an English court if challenged in the event of a subsequent divorce. Our Law Commission has also proposed that the law should be changed to make agreements binding, subject to safeguards, except where there is evidence of foul play or manifest unfairness. It is clear that the law and public policy is now more supportive of the public’s increasingly expressed desire to regulate their own affairs.

The collaborative process is an ideal forum for working out the details of a pre-nuptial agreement, as the lawyers and clients work closely together on a solid bedrock of trust and open negotiation in order to work out a solution that is fair and complete.

It is the completeness of the solution that tends to be my specialist area. When working on a pre-nup, or a post-nup, my collaborative solicitor colleagues from Creative Divorce might discuss with their clients whether they would like me or another specialist barrister to come into the process as an independent legal expert. If called upon to do so, I will give my opinion on how a court might treat the draft agreement, and whether there are any other eventualities that need to be addressed. I can act as an ‘honest broker’ to check whether people have considered all the ramifications of an agreement for both people involved, and can raise any points that I feel might lead to difficulties so that they can be reconsidered in the four-way meetings that are part of the process.

An important part of my job in advising on a pre-nup is not just testing against reality, but also testing against expectation. These discussions require great sensitivity, as they can sometimes lead to a change in the dynamics between the couple. Most of the time these points can be resolved quickly, easily and harmoniously. In other cases, they can really put the cat amongst the pigeons, at least for a while, and therefore require particular engagement to resolve. However difficult this might be on occasion, it is in my view always better to explore and resolve the difficulty before, rather than after, the agreement is signed.

The beauty of the collaborative process is that my skilled collaborative solicitor colleagues tend to ensure that the conversation continues constructively, no matter how difficult the subject matter. In my experience, even if the assets are complex and the expectations are difficult to fulfill, the collaborative process is by far the most successful and least stressful method of agreeing a pre-nup.