Neil & Neil – Setting Aside a Consent Order as a Result of Fraud
Date posted: 10 September 2020
Felicity Jones, solicitor in the family team, considers this financial remedy case where the issue turned on the Wife’s fraudulent conduct.
In this case, the Court considered the Husband’s application to set aside part of a Consent Order which had already been sealed by the Court. The Husband also sought consideration of the settlement owed to him and an Order for payment of this settlement, once determined. The Husband’s case was that the Consent Order had been obtained by way of fraud.
The parties were in their 50s. They had cohabited since 1992 and were married in 2007. They had set up a business in 2002 and separated in 2014. The former matrimonial home was worth £2.8 million with an equity of £1.77 million.
Upon their separation, the parties attended mediation and reached a Memorandum of Understanding that the former family home would be sold and the proceeds split equally but that the Wife would receive £1million from the sale and so if the split did not allow this, the difference would be registered by way of charge to the Husband repayable upon the sale of the property or the Wife’s remarriage.
The Wife went to a solicitor and sought for this agreement to be turned into an Order which could be agreed by Consent and filed with the Court. However, the Wife instructed her solicitor to draft an agreement which did not quite reflect the agreement which had been reached. Throughout a number of drafts of the Consent Order, the Wife instructed her solicitor to include more favourable terms for her. Initially she included nominal periodical payments when none were agreed previously. She then removed the charge back provision and included an Order for spousal maintenance. Whilst the Husband had agreed to pay a monthly sum until the house was sold, the final Order provided for this monthly sum to continue until her remarriage.
During this time the Wife had sought a mortgage and had relied on the better terms in the later Consent Order to obtain a mortgage offer. She had informed the bank that the Husband would email them to confirm the new terms of the Consent Order; an email was later received from the Husband’s email address.
The Wife’s solicitor lodged the Order, which had been signed by both parties and the same was sealed on 8 July 2015.
Following this, the former family home was sold and the Wife paid the Husband only £100,000. She purchased a new property but refused to register a charge in the Husband’s favour.
In 2016 the business ran into difficulties and allegations of misappropriation of funds were made against the Wife in the Chancery Court. Findings were made by the Chancery Court that the Wife had relied on forged documents and she was sentenced to 8 months imprisonment for contempt of Court, a costs order was also made against her.
The Wife sold her property and transferred almost half of the proceeds to her then boyfriend. She was made bankrupt in March 2018.
The Husband applied to set aside the Order for Spousal Maintenance on the grounds of fraud. The Wife cross applied to increase the Spousal Maintenance.
The Court set aside the spousal maintenance provision, declared that the Wife owed the Husband £248,930 to be paid within 28 days and ordered costs on an indemnity basis.
The Court had given itself a bad character direction; the fact that the Wife had lied previously did not mean that she had lied here, but the finding from the Chancery Court could be taken into account. The expert evidence (a handwriting expert in relation to the signatures on the Consent Orders and an email expert in relation to the email to the bank) is weighed with lay and observational evidence. The handwriting experts contradicted each other and were not relied upon. The email to the bank, however, was found in the sent folder of the Wife’s email account.
In this instance the Court found that the Wife had been thoroughly dishonest and fraudulent and therefore that the Order should be set aside. The Court held that there was no need for a full reconsideration of the financial remedy case and the appeal Court made the final Order without remitting the matter for reconsideration. The case is also an authority on converting agreements into Orders quickly.
If you have a financial remedy case you need assistance with contact Mavis on 020 8885 7986 for an appointment with Felicity.