In Sharland v Sharland, the Supreme Court today granted the appeal of a woman who wanted to reopen her divorce settlement on the grounds of her husband’s fraud. Here’s my technical legal analysis, in a few words, of the precedent this case lays down to bind the courts in future.

RATIO—Where one of the parties to a divorce settlement was guilty of fraudulent non-disclosure, the court’s order should be set aside unless the fraudster proves it made no difference to the agreement and order. Fraud is distinguished from other material non-disclosure cases, where the burden of proving a “substantial difference” is on the aggrieved party as laid down in Livesey v Jenkins. (Lady Hale, with whom all six other Justices agreed, §§29-33);

OBITER—An application to set aside the order can and should be made to the family court rather than by way of appeal (Lady Hale, with whom all the Justices agreed, §42).

Here are explanations of the terms ratio, obiter and distinguished.

2015-10-14T14:26:08+00:00Tags: , , , |