Posted on 25.9.15
On Wednesday night BBC1 aired the 3rd episode of a five-part drama series by Mike Bartlett called ‘Doctor Foster’ which sees Suranne Jones star as Gemma Foster, a well-respected GP whose life is turned upside down when she discovers her husband Simon, played by Bertie Carvel, is having an affair. On the BBC1 website it states “in public Gemma plays the perfect wife, whilst secretly concocting a plan to ensure she comes out on top – only to make new discoveries about the extent of the secrets around her”, implying that the lengths Gemma Foster goes to in episode 3 will somehow ensure she receives a better financial settlement, but is this the case?
Spoiler alert! Episode 3 sees Gemma Foster meeting with a divorce lawyer called Anwar, played by Navin Chowdhry, who asks her to bring details of her financial circumstances to their initial appointment. When Gemma brings a couple of bank statements with her and tells her lawyer that her husband manages all of their finances he tells her that she needs to find out how much money he’s got and what he wants, all whilst playing the dutiful wife to ensure he doesn’t suspect anything. He goes on to say that her husband will officially take 50% of everything, as this is the default and could hide away assets meaning she’ll receive less than 50% of the matrimonial assets, but is this on-screen portrayal true to life?
The starting point
The mere fact of the marriage gives each party to the marriage financial claims against the other on divorce – that is claims for income, capital, pensions and property. Every case is unique and Family Court Judges have a wide discretion to make decisions which they deem to be fair based on the particular facts of each case. This flexible approach means that there is uncertainty in predicting outcomes and no ‘one size fits all’ approach.
The starting point for all claims against capital assets in the marriage is an equal distribution of the available capital and pension provision. However, fairness does not necessarily mean an equal division, and there are often circumstances which suggest that an equal division of the assets should be departed from based on the needs of the parties’, the needs of any dependent children and taking into account all of the circumstances of the case, in particular the section 25 factors set out in the Matrimonial Causes Act 1973. Therefore, there is no guarantee that a Court would award Gemma’s husband, Simon, 50% of the available assets, it would depend on Gemma and Simon’s needs and those of their son, Tom, taking into account their particular set of circumstances.
There can be the temptation to try and hide assets of the marriage, either by disposing of them or transferring them to someone else, and not disclosing them during the disclosure process. Not only is this underhand and illegal, a Judge can still order that the value of these assets should be taken into account. Divorcing couples are required to make full and frank disclosure of their assets, income, property and pensions, which is an on-going duty, and if a spouse deliberately omits information from the disclosure process within contested Court proceedings, they can find themselves in contempt of court, punishable by a fine or imprisonment. Whilst you may want to chase down every possibility of non-disclosure in the hope of uncovering more assets, it is important to take a pragmatic view and weigh up the benefit to pursuing the issue versus the costs involved in doing so and whether it would make a difference in terms of the overall settlement.
The Courts take the hiding of assets very seriously and can in certain circumstances order that the assets should be frozen, an order to prevent the disposal of assets taking place, or to unwind transactions which have already gone ahead. The person hiding or disposing of the assets can be penalised for doing so, either by ordering them to pay their spouse’s legal fees, or by providing them with a less favourable settlement. So if Gemma’s husband was to try and hide away their assets or dispose of them, it doesn’t necessarily mean she’ll receive less than 50%, it would depend on the circumstances.
In episode three you see Gemma Foster blackmailing her husband’s Accountant , Neil, played by Adam James, to provide copies of her husband’s bank statements and company accounts for the previous three years without his consent, but how would this type of conduct viewed by the Family Courts?
In family law there is case law which deals with “self-help” i.e. helping yourself to your spouse’s confidential documents, which has provided guidance for lawyers when dealing with these issues. Divorce is often accompanied by a complete breakdown in trust and the temptation to secretly gather information is hard to resist, but doing so amounts to an infringement upon your spouse’s right to privacy and confidentiality unless there is clear evidence that the information has been treated as being ‘open’ to the other spouse or the spouse shares the confidence to the material due to the way in which the parties organised their matrimonial affairs, which will be fact specific.
In certain circumstances ‘self-help’ conduct can amount to a criminal offence, punishable by a fine or imprisonment, and you can also be at risk of being sued in the civil courts for breach of confidence and misuse of private material if your spouse finds out and find yourself at the wrong end of a claim for damages, compensation and costs.
For help dealing with a divorce or financial settlement you can contact the Matrimonial team at Gorvins on 0343 507 5151 or e-mail firstname.lastname@example.org with your concerns and we will work together to try and ensure you receive a fair divorce settlement.