HUSBAND AND WIFE — Financial provision — Disclosure of material facts — Parties agreement on financial provision embodied in consent order recording wife’s belief that husband not providing full and frank disclosure — Wife subsequently applying to set aside consent order on grounds of material non-disclosure by husband — Husband convicted of money-laundering and fraud — Judge permitting fresh evidence to be adduced — Judge relying on evidence some of which subsequently held inadmissible setting aside part of consent order — Relevance of principles applicable on application to Court of Appeal to introduce fresh evidence at appellate stage — Whether appellate court to consider whether on admissible alone judge would still properly have set aside consent order — Whether judge’s decision to be set aside
Gohil v Gohil (No 2)
 UKSC 61;  WLR (D) 407
SC: Lord Neuberger of Abbotsbury PSC, Baronss Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Sumption, Lord Reed, Lord Hodge JJSC: 14 October 2015
When a judge, through no fault of his, had heard both admissible and inadmissible evidence when allowing a wife’s application to set aside a consent order on the grounds of material non-disclusre by the husband it was necessary to consider whether on the admissible evidence which had been before the judge he would still properly have granted the wife’s application.
The Supreme Court so held, allowing the appeal of the wife, Varsha Babul Gohil, from a decision on 13 March 2014 of the Court of Appeal (Arden, Pitchford and McFarlane LJJ)  Fam 89 to allow the appeal of the husband, Bhadresh Babulal Gohil, from a decision on 25 September 2012 of Moylan J  EWHC 2897 (Fam) granting the wife’s application to set aside a consent order made by Baron J on 30 April 2004 in ancillary relief proceedings following the parties’ divorce.
In 2007 the wife applied to set aside the 2004 consent order on the grounds of alleged serious material non-disclosure by the husband. The husband was subsequently convicted of serious offences of money laundering and fraud and was sentenced to a term of imprisonment. The wife, who had not previously been aware of the husband’s criminal connections but had heard much of the evidence in open court at his trial, applied for disclosure by the Crown Prosecution Service of certain key material in the criminal proceedings. The judge granted that application and in 2012, on the hearing the application to set aside the consent order, permitted the wife to adduce fresh evidence relating to alleged non-disclosure during the ancillary relief proceedings and to alleged non-disclosure discovered by hea when listening to the criminal proceedings. Applying the guidelines in Ladd v Marshall  1 WLR 1489 the judge held that there was new evidence which would probably have an important influence on the result of the case, concluded the husband had failed to give full and frank disclosure of his true financial circumstances, set aside part of the consent order and ordered a rehearing. Subsequently the Court of Appeal allowed the Crown Prosecution Service’s appeal against the disclosure order: Gohil v Gohil  Fam 276.
LORD WILSON JSC (with whom the other members of the court agreed) said that the principles propounded in Ladd v Marshall had no relevance to the determination of an application to set aside a financial order on the ground of fraudulent non-disclosure. To decide if the judge’s order could be reinstaated despite his having heard inadmissible evidence from the husband’s criminal proceedings, it was necessary to consider what admissible evidence had been before the judge and to ask whether he could properly have found that the husband had been guilty of material non-disclosure. The conclusion was that, even if he had referred only to the evidence admissible before him, the judge would still properly have found the husband to have been guilty of material non-disclosure in 2004. The judge’s order of 2012 should be reinstated and the wife’s claim for further capital provision should therefore proceed.
LORD NEUBERGER OF ABBOTSBURY PSC delivered a concurring judgment.
Sally Harrison QC and Samantha Hillas (instructed by Irwin Mitchell LLP, Manchester) for the wife.
James Turner QC and George Gordon (instructed by Duncan Lewis) for the husband.
Reported by: Shirani Herbert, Barrister
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