Disclosure of documents subject to implied undertakings
This week’s episode of The Split was all about bad behaviour, both in the court room and at home.
Not even our favourite characters were spared, soon-to-be-wed Rose made a pass at her vicar and not-so-dependable husband and father Nathan overstepped the mark with his sister-in-law, Nina, following a high-octane game of Nerf Gun Wars with his children and their estranged grandfather.
Back in the office, the MacKenzie case rumbles on and wife, Goldie, learns that her husband’s adultery with her best friend runs deeper than an affair, but has in fact produced a child to whom Goldie is god-mother. Whilst Mr MacKenzie’s adultery is typically not something a court would take into account as amounting to “conduct” so as to impact a financial settlement, his half-hearted attempt at full disclosure is something which judges take very seriously and repeated non-disclosure and hiding of assets can lead to very serious consequences, including a “penal notice” mentioned in this week’s episode. This means that a party who repeatedly fails to comply with orders of the court, including producing financial information, could be (in the case of serious and repeated breaches and despite warnings) committed to prison.
Mr MacKenzie’s tactic of swamping Goldie’s lawyer with so much financial documentation that she wouldn’t possibly have time to review it did not have the desired effect, when in reviewing those documents, a series of transactions and an additional bank account was discovered. Judges in the Family Court are generally unimpressed by tactical or strategic behaviour which seeks to unfairly disadvantage one party, delay matters unduly or run up the legal costs without good cause and this is referred to as litigation conduct. This type of behaviour can be taken into account by a Judge and may well impact on the financial settlement including the power for a Judge to make an order for one party to pay the other parties’ costs or a portion thereof.
We were also treated to storylines of bad behaviour which had an impact above and beyond the parties’ finances including Janie’s divorce from her husband where he sought to use frozen embryos which they had created together while Janie was suffering from cancer as a bargaining tool. Now fully recovered and despite the breakdown of the marriage, Janie wished to have access to those embryos in order that she might have a child. This is something she can do (using those embryos) only with her husband’s consent and which he sought to use as a negotiating tool to achieve a more advantageous financial settlement. Not a very attractive argument at all, not least because the embryos are not an “asset” to be traded or divided, but because it so clearly pulled on the heartstrings of Janie who was willing to forgo a financial settlement that she thought was fair in order to have a chance at having children of her own. Despite her lawyers warning that her husband’s consent could be withdrawn at any time and, as part of a financial agreement, consent given in relation to the embryos was unenforceable, Janie accepted her husband’s proposal in the hope that one day she would have a chance of having children of her own. This is a story which will resonate with many couples of individuals who are looking for a way to start a family and for biological or other reasons have been faced with difficulties. It is hoped that in episodes to come, The Split will look at alternative family structures and other ways of starting a family such as surrogacy and adoption, all of which are becoming increasingly common.
Finally, it was revealed that Ruth, the matriarch of the family, had, over a number of years withheld gifts, cards and letters to her (now grown up) children from their father from whom she had separated when the youngest child was only 14 months old. The story she had told them was that he had disappeared and wasn’t interested in them which led them to grow up holding certain beliefs about their father, and no doubt about themselves being the children of a parent whom they assumed did not care enough to know them or be involved in their lives. It was the final scenes of this episode where we saw how the decisions made by parents can impact children throughout their lives and well into adulthood. Hannah, the eldest of her two other siblings, tears into her mother’s wardrobe in the middle of the night, half in anger, half in despair desperately searching for the items her father says he sent to them years ago. It is a stark reminder that decisions we make for our children today may seem like a drop in the ocean, but the ripple effect of that one drop can be life-changing.
If you would like to speak to Olivia Stiles or any other member of our family team about any of the issues raised in this blog or through storylines featured in The Split, please do not hesitate to get in touch.
You may also be interested in reading our previous blogs with our reflections on the first series of The Split.
Connie Atkinson, a Senior Associate in our family and divorce team, has been one of the legal advisers on the script of The Split, seasons 1 and 2.
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