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Published On: September 27, 2017 | Blog | 0 comments

Doctor Foster and divorce – the big questions answered

If Simon hid money from Gemma when they were agreeing their financial settlement on divorce, is there anything she can do about it?


During divorce negotiations and before reaching an agreement Simon and Gemma will have been required to exchange details of their respective financial positions. Lawyers call this “financial disclosure.” When a court order is made which makes the agreement binding, it is usually final. However, Gemma could make an application to “set aside” that order on the basis of Simon’s material non-disclosure. To succeed in this she would need clear evidence that he had hidden assets from her and, if so, that the outcome would have been “substantially different” had those assets been disclosed and taken into consideration.

What about arrangements for Tom?

If Gemma and Simon cannot reach an agreement about Tom then the Family Court has jurisdiction to make an order setting out with whom Tom will live and also arrangements for him to spend time with the other parent. The court’s priority will be to ensure Tom’s welfare and they will take a number of factors into account in determining the outcome. These factors are known as the “welfare checklist” and include Tom’s physical, educational and emotional needs and the capability of Gemma and Simon of meeting these needs, any risk of harm to Tom, the likely effect on Tom of any change in circumstances, his age, sex and background and his own wishes and feelings.

As Tom is 15 his wishes and feelings are likely to be very important in influencing the outcome. In fact, some Judges tend not to make orders at all in respect of children in their mid-teens, on the basis that they are probably old enough to make their own decisions and will do as they wish regardless of what the court says.

However, it is Tom’s welfare and not his opinion that will be the paramount consideration. Also, in cases where there is parental alienation or, like this one, very high conflict between parents, it may be difficult to ascertain what a child truly feels. If this case was before a court then a Judge may consider it appropriate for an Independent Social Worker to spend time with Tom and his parents and prepare a detailed report making recommendations for Tom. Tom, Gemma and Simon may also benefit from ongoing intervention and support from a family therapist, who could help Gemma and Simon reduce acrimony and ensure they put Tom first.

Simon and his new wife Kate’s new house is in Kate’s name only. Now that Kate has left him does that mean Simon has no rights in respect of their family home?

In short, no. On divorce all assets and liabilities are taken into account, regardless of whose name they are in.

As Simon and Kate’s marriage lasted for only two years it is unlikely that Simon would be able to bring any significant claim on Kate’s assets, especially if they were acquired before the marriage and/or they came from her family. However, the court also recognises that the family home should be treated differently to other assets and Simon has what are known as “home rights”. More generally, the court would want to ensure Simon’s needs were met and if he has limited assets himself then they would look to give him a share of Kate’s assets to get him back on his feet. That he has behaved very badly towards her does not make any difference to this.

Can Kate really take her and Simon’s daughter Amelie to France and make sure he “never sees her again”?

If Simon has Parental Responsibility for Amelie (either by being married to Kate when Amelie was born or, if Amelie was born before they were married, by being registered on her birth certificate) then Kate is not permitted to remove Amelie from England and Wales without Simon’s consent and to do so would constitute child abduction. This would be treated very seriously by the police both in the UK and in France. Both countries are members of the Hague Convention, which is an agreement entered into by multiple nations that they will work together against child abduction.

Kate is understandably very angry with Simon, but the court’s approach will be that unless there is a risk of harm to Amelie, Amelie has the right to have a full relationship with both her parents regardless of their feelings towards one another. Kate and Simon should therefore try and reach an agreement for Simon to spend time with Amelie so that their father/daughter relationship is maintained. It may be that the best way to do this is through mediation, so that they can find a way forward that both of them can live with and that prioritises Amelie’s best interests.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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