7th February, 2019 by Joanne Wilbraham
We are all familiar with the phrase “a right to privacy”. It is something that we all value and it is common for celebrities to fight for it through the courts, but to what extent can we rely on it when going through a divorce? Do we have a right to keep certain information to ourselves? What about past secrets that have been kept during the marriage? Is it better to keep quiet or is honesty the best policy?
In light of the recent case of alleged “paternity fraud” Joanne Wilbraham in the family team looks at the issues, the information that needs to be shared, and the consequences of keeping secrets.
If you are negotiating a financial settlement you must be completely honest about your circumstances. The duty to provide full and frank disclosure remains ongoing until matters have been concluded. Some people will attempt to be less than honest, hiding assets, exaggerating a future risk or by deliberately reducing their income. If it is discovered that you have not been truthful when it comes to your financial position you are at risk of the financial settlement being set aside, even many years after the event. The matter returning to court will not only be stressful and time-consuming; it will also be very costly. If you are found to have acted dishonestly then you are likely to find yourself liable for the other party’s legal costs as well as your own.
The duty of providing full and frank disclosure may not be limited to your financial circumstances and this was highlighted in a recent case where a wife had led her husband to believe that he was the biological father of their three children.
Many years after his divorce and financial settlement had been concluded, Mr Mason was understandably shocked to learn from doctors that he had been infertile since birth, particularly as he believed that he had fathered three sons from his previous marriage. By the time that this came to light, the eldest child was in his early twenties and the younger two were in their late teens.
At the time of the divorce, his wife had been awarded a multimillion-pound settlement. Upon discovering his ex-wife’s deception Mr Mason took legal action to get part of that settlement returned due to “paternity fraud”. The case was settled at the end of last year with Mr Mason’s ex-wife agreeing to make a payment to him in the sum of £250,000.
As the case settled outside of court, it is not known whether Mr Mason’s claim would have succeeded. What is clear however is that the wife had not been completely honest about matters during the previous proceedings and this therefore provided Mr Mason with an opportunity to return the matter to court.
Whilst Mr Mason was entitled to know that the children were not his biological children, had Mrs Mason been honest at the time, to what extent would that have impacted on the outcome?
When a court considers an appropriate financial settlement they will consider the welfare and needs of any minor child of the family. A “child of the family” is defined within the Children Act 1989 as “A child of both of the parties of a marriage or civil partnership” or “Any other child who has been treated by the parties of a marriage or civil partnership as a child of their family”.
Clearly, in the case of Mr Mason he had considered the three children as children of the family. It is therefore questionable whether, had Mrs Mason revealed the truth, the Court would have made any variation to the matrimonial award on the basis of biology alone.
By not being honest, Mrs Mason created a situation whereby the matter could be returned to the Court for further consideration. This should act as a clear warning that any deception during a divorce or negotiating a financial settlement is highly likely to result in further court proceedings and extensive legal costs being incurred.
In Mr Mason’s case the emotional cost to him, and to the three children caught up in this situation, will far outweigh the financial consequences.
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