A Jewish husband who failed to disclose all his assets in divorce proceedings has lost his plea to the Court of Appeal.
Mr Moher appealed a financial remedy order made in May 2018 on the grounds that the judge hadn’t determined the extent of the available assets and therefore shouldn’t have made the £1.4m award to his wife. He also challenged the judge’s decision that he should have to pay periodical payments to his wife until a Jewish Get, the Hebrew word for a divorce document, was granted.
The Court of Appeal considered the position where one party’s non-disclosure makes it very difficult for the court to assess the value of the assets. It gave clear guidance that a judge should try to determine the extent of the financial resources and can draw inferences based on the evidence.
However, it also said that the judge isn’t required to provide a figure or a bracket if the assets simply can’t be quantified. In such cases of non-disclosure, the court can infer that there are sufficient resources to achieve a fair outcome and it’s better to make an order which turns out to be unfair to the non-disclosing party than to the innocent party. The court should be astute to ensure that the non-discloser doesn’t obtain a better outcome than they would have got had they complied with their obligations.
In this case, the judge hadn’t been able to quantify the husband’s assets or income due to him making the details unclear, and the judge had therefore been entitled to make an order designed to meet the wife’s needs and to conclude the husband would be able to provide for himself.
Mr Moher also claimed that the court wasn’t entitled to make him pay periodical payments until he cooperated with a Get, because a Get must be given voluntarily and he was essentially being put under financial duress to do so. However the Court of Appeal ordered him to continue making periodical payments to Mrs Moher until a Get is granted, noting that the judge was entitled to make such an order.
Since a Jewish marriage is entered into by a legal contract between a man and woman, it can only be terminated by a legal document ending that original contract. In Jewish practice, only a rabbinical court can dissolve a marriage between a married couple. It’s not unusual for civil divorce orders to include that the decree absolute won’t be pronounced until a Get has been obtained, to avoid Jewish women being left in a position where they’re still married under Jewish law and unable to remarry. The use of the maintenance order was to provide further protection in the face of an uncooperative husband.
This was clearly an emotionally charged case, and the Court of Appeal endorsed the judge’s view that there was a compelling need for a "clean break" between the parties so that they’d be able to make "new lives" with as little on-going interaction as possible. This was in the context of the husband having been convicted for assault and harassment of the wife.
The case sends a strong message that individuals who fail to disclose their assets and who may think that this is tactically astute can end up paying a heavy price.
We have handled many cases involving financial non-disclosure, including the Supreme Court cases of Sharland and Gohil and more recently Hart v Hart where the husband failed to disclose all his assets and to comply with court orders, and was eventually sent to prison for serious contempt of court. The court takes non-compliance very seriously and non-disclosers risk grave consequences.
Published: September 2019
A monthly briefing from Irwin Mitchell
September 2019
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