Moher v Moher

In financial remedy proceedings involving serious non-disclosure, the court should seek to determine the non-discloser’s resources and may draw properly founded, reasonable adverse inferences. It need not quantify hidden resources by a figure or bracket where the evidence makes that impossible. The court may infer that sufficient resources exist to make the proposed award fair and to meet both parties’ needs.

A financial remedy judgment should address each relevant statutory factor, identify the visible net assets and explain how the award was calculated. Periodical payments may continue until the grant of a Jewish religious divorce where justified by financial consequences or the parties’ continuing ties, but not as punishment.

The husband appealed against a final financial remedy order made by His Honour Judge Wallwork, sitting as a Deputy High Court Judge. The order required a lump-sum payment of £1.4 million, periodical payments until the later of payment of the lump sum or the grant of a Jewish religious divorce known as a Get, and a contribution to the wife’s costs.

The trial judge found that the husband had comprehensively failed to disclose his resources. The husband contended that the judge was required to quantify the undisclosed wealth, had inadequately explained and overstated the award, and had wrongly combined periodical payments with interest. He also challenged the continuation of payments until the Get.

The central issues were the permissible response to financial non-disclosure, the required reasoning for a financial remedy award, and the validity of the ancillary provisions.

1. Appeal dismissed. A court dealing with broad financial non-disclosure should generally seek to determine the non-discloser’s resources under section 25 of the Matrimonial Causes Act 1973. It may draw adverse inferences justified by the nature and extent of the default, but those inferences must be properly founded and reasonable. The court must avoid pure speculation and need not undertake a disproportionate inquiry.

2. The court is not invariably required to quantify undisclosed resources by a figure or bracket. The form of the necessary evaluation depends on the issues and evidence. Where non-disclosure prevents quantification, the court may infer from the available material, judicial experience and inherent probabilities that the resources are sufficient to meet both parties’ needs and that the proposed award is fair. This approach prevents the non-discloser from obtaining an advantage from the default.

3. As a matter of good judicial practice, every financial remedy judgment should set out the conclusions on each relevant section 25 factor, provide a schedule of the parties’ visible net assets even where further assets are concealed, and explain how the award was calculated. Despite deficiencies in the judgment below, the findings sufficiently established that the husband could meet the wife’s needs and provide for himself. The £1.4 million award reflected housing, debts and an income fund close to the £570,000 sought by the wife, after accounting for her income and child-related expenditure.

4. Under section 23 of the Matrimonial Causes Act 1973, a lump-sum order made after decree nisi does not take effect until decree absolute. If a stated payment date might precede decree absolute, the order should say expressly that payment is due on that date or decree absolute, whichever is later. Section 23(6) nevertheless permits deferred sums or instalments to carry interest from a specified date as early as the date of the order.

5. The court must guard against double counting where periodical payments continue while a capitalised income award remains unpaid. The relationship does not require precise arithmetic; the judge may take a broad approach to achieve fairness. Here, the payments met additional needs pending receipt of the lump sum and therefore did not duplicate the capital award.

6. The court has jurisdiction to continue periodical payments until a Get is granted, including after a capitalisation lump sum becomes payable or is paid. Such an order must not punish the husband. It may be justified by direct or indirect financial consequences and by the effect of the parties remaining tied together. Section 10A of the Matrimonial Causes Act 1973 does not exhaust or restrict the court’s other financial powers. The trial judge was entitled to make the order in the circumstances.

1. Court of Appeal (Civil Division): Dismissed the husband’s appeal and upheld the financial remedy order.
2. High Court, Family Division: His Honour Judge Wallwork, sitting as a Deputy High Court Judge, ordered the husband to pay a £1.4 million lump sum, periodical payments, and a contribution to the wife’s costs. No neutral citation was stated.