The cases of Alison Sharland and Varsha Gohil, who won their Supreme Court cases seeking more money in their divorce settlements because they say they were misled by their former husbands about their wealth, show the differences in procedure between Scotland and England, according to Turcan Connell Family Law Specialist Gillian Crandles.
The decision in London means both divorce settlements are likely to be reappraised – the situation in Scotland would be different, but we would hope that the outcome would be the same where someone attempted to mislead their former spouse in order to pay them less than was rightly theirs.
In England and Wales, a divorce is split into two stages. You have Decree Nisi and then you have Decree Absolute, which is usually when the financial orders are dealt with. In England there is no need to revisit the Decree Absolute itself to reconsider financial remedies.
In Scotland we only have one stage – a decree of divorce is granted at the end of the case when the financial provision orders are also made. If we were to go down the English route of revisiting the financial settlement of the divorce, that would potentially also mean undoing the actual divorce itself (except in certain relatively limited circumstances). In other words the effect would be to reinstate the marriage before we looked at the financial considerations again, a process that no one would want. The route open to someone in this situation in Scotland would therefore be to take a case against their former spouse alleging fraud on their part and seeking recompense accordingly.
Are cases like this a major concern? It’s definitely something on the minds of a lot of people who come to Turcan Connell for advice so it’s an issue that we have to be aware of and open to. But in reality, given the checks and remedies we have available to us prior to decree being granted, it doesn’t happen very often.