TYB v CAR (Non-Disclosure) (No 2)

What do we do with the non discloser?

This is how I started my reserved written judgment in this case of 16^th December 2023 reported as TYB v CAR (2023) EWFC 261 (B): https://www.bailii.org/ew/cases/EWFC/OJ/2023/261.html . That should have been the final hearing but could not be effective due to nondisclosure.

Since then, directions have been given including multiple third-party disclosure orders in order to try to find out the true financial circumstances of the respondent husband. It came back for a final hearing before me on 23 June 2025, 2 days, and this is my final judgment. It will be published, in part to continue a number of cases regarding adverse inference, in part as an example of the difficulties with which the family court is faced when one party wilfully refuses multiple opportunities to give their side of the story but also in part because I know it can be frustrating for legal commentators to have an interim type reported decision without knowing where it eventually went.

I refer to adverse inferences and I do rely on that case law as below. But in fact, it’s far easier and simpler. When a party to financial remedy proceedings on divorce gives a financial picture during the marriage, perhaps on separation or maybe even a couple of years into separation, and then says everything has changed and there has been a dramatic decline, it is for that party to show the change, to show the new financial circumstances, the new financial landscape in which they are saying they are and will be living and, consequently, so will the other, former spouse and child. I refer to burden of proof under the law as below. But this is not technical. This is simply to demonstrate with evidence the new financial circumstances when the previous ones were well known and acknowledged.

The family court will help a party with this process. Directions for narrative statements to explain what has happened. Chance to produce bank statements identifying the straitened and reduced income. A comparison of a previous lifestyle with the new one, of previous incomes with present income. And the family court will be sympathetic because it knows through many other cases that this is what goes on in life and in commerce, the ups and downs of good years and bad years. But crucially if the party won’t give that disclosure, won’t show why or how or when the significant change occurred, then in those circumstances the court may well be sceptical, and the other party definitely suspicious, whether there has been any change. If after countless opportunities, court orders and many months lapsing, the party is stubbornly not giving this disclosure of new circumstances, is not giving any assistance in helping the process, the court and the other party, to understand what has happened then the court is very likely to find there wasn’t any dramatic change, or it was not dramatic even if there was some change. This is not necessarily adverse inferences. It is simply not having the new information on which to rely about any change in circumstances. This will be particularly the case where there are contra indicators and, at best, curious circumstances which well lead to the conclusion that the previous financial position remains.

This is then even more the case when judicial warnings have been given, as here. I had said previously to this husband that if he was right about the dramatic change then the claims being made by the wife were utterly unrealistic and far too high. But if he wasn’t right including not demonstrating he wasn’t right then the claims may well be perfectly reasonable and she would succeed. It was up to him to demonstrate the change. He chose not to. Whether through stubbornness, unwillingness to accede to the involvement of the court in his affairs or deliberate attempt to hide his assets is a matter for speculation but not for this court. My final decision was a very easy one. This husband had completely failed to give any material evidence for which this court could be satisfied that he had had any dramatic change in his financial circumstances. The court was therefore entitled to presume either that his previous income and remuneration had continued and he had not disclosed alternatively it had still been at a good level and at which he could support his wife and child as they sought. I had no difficulty in acceding to the order sought.

The hearing in December 2023 had been listed as a final financial remedy hearing. For the reasons set out in the written judgment, I felt it was unfair and unjust on the husband to proceed with the hearing and gave him a further opportunity to give disclosure of his new circumstances, as he asserted, so that we could make a more reliable outcome. That further opportunity has been repeated in subsequent directions in the intervening period. I regret to say that he has thrown these opportunities in the face of the family court, giving almost no more information so that this court is not much wiser now than in December 2023. I feel for the frustration of the applicant wife for these intervening 18 months. I feel for the costs that she’s had to incur, on legal aid. I feel for the endeavours made by her lawyers to find out the factual position, and they have done an exceedingly good job on her behalf, continually frustrated by non-engagement by the respondent husband. As I have said to him before, he has only himself to blame where he has not taken the opportunities to set out his changed financial circumstances, if indeed this is what has happened.

A lot of the background is in the December 2023 judgment which should be read with this judgment. The wife was born on 23 July 1984 and is soon 41. The husband was born on 27 April 1981 in the USA and is 44. They were both working in sales when they met. They married on 4 July 2017. Their child was born January 2020 and therefore 5. They separated that month, January 2020, less than 3 years marriage, with a conditional order of divorce in July 2022.

The wife has back problems and there is medical evidence that she is presently unable to work. I’m also conscious that for the last 4 years she and her husband have been involved in substantial litigation together, being not just financial remedies but contested children proceedings and contested domestic violence proceedings. There have also been contested criminal proceedings against the husband arising from the domestic relationship. I referred to this in more detail in the original judgment in December 2023. This has all taken a colossal toll on them both.

She is on universal credit in short-term, basic rented accommodation. The child is now at full-time education and sees the father alternative weekends, Friday-Monday morning.

Initially in the relationship, she in fact supported the husband and they were in a similar line of business. As soon as she was pregnant, he encouraged her to stop work and she hasn’t returned.

The husband thrived in his line of work, gained a worldwide successful reputation and reaped the rewards. At the December 2023 hearing, he admitted earning at least £60,000 per month and perhaps much more; the nature of commissions, the source of his income, was that he sometimes had very substantial receipts. He also admitted that as recently as August 2022 he spent at least £35,000 in a month on luxury entertainment and lifestyle. He was then living in luxurious rented accommodation, about £4200 per month, admittedly down from the £5400 per month accommodation during the marriage. He paid rental annually upfront so clearly he was in receipt of plenty of cash. This was the position at the time of the separation and a couple of years thereafter. The applicant wife was reasonably entitled to expect consequential good financial provision, with the feature of the standard of living being significant.

The Form A was 11 August 2022, more than 2.5 years after separation. In retrospect, is it coincidental he said that the dramatic change in his finances was September 2022? I didn’t believe so in December 2023 but now I have come to the conclusion this was no coincidence. This is a pattern we see too often in the family courts. All going well until the event of the financial claims.

On separation the wife with the very young baby moved to a refuge. I understand she then moved to very basic accommodation, although her address is confidential. I understand she or the state may be paying about £1000 per month. The contrast with the husband rental of £4200 per month is stark and compelling and highly unattractive. Whilst throughout the wife has been on universal credit in very basic accommodation, this husband has of his own admission in the early years of separation been earning colossal amounts, living in luxurious accommodation yet, until December 2023, paying nothing to her or the child. She should not have had to have put up with this appalling discriminatory treatment by him. Of course it comes into the category of coercive and controlling behaviour. He was controlling her life, her standard of living, her hopes and expectations and also her ability and willingness to pursue claims against him. When he was in accommodation costing more than £4000 a month, with extremely high lifestyle outgoings, he was expecting her to live in very basic accommodation. That is unacceptable to this court.

I observe in passing a reference on one occasion by him to the fact that if his wife couldn’t afford good accommodation for the child, and he could, the child should live with him. I see this expressed quite often in some other jurisdictions, where gender equality and financial provision is not strong. As a concept it is anathema to us in England. If the best interests of the child are to live with one parent, there should be financial provision accordingly. There should not be an artificial construct so that the child lives with the financially wealthy party.

Of course he should have been giving support to the daughter and to the wife but he didn’t and still is reluctant. A theme of this final hearing was a complete absence of any awareness that his wife, in her present medical condition and with primary care of a young child, should be receiving any support from him. It was alien to him. I strongly suspect this has informed his feelings about giving any disclosure, in which case it has work to his major disadvantage.

The husband couldn’t even work out, be consistent, in when the dramatic turn down occurred. He had referred to it at the July 2023 hearing but without a date, and then in December 2023 he was explicit that it had been sudden, unexpected and in September 2022. But at this hearing in June 2025, he said September 2023. In other words, only a couple of months before the purported Dec 2023 final hearing and after the July 2023 hearing. When it was pointed out how he was inconsistent, he tried to suggest it had been a progressive decline over 12 months. By now the only conclusion was he was making it up as he went along

It’s only by preparing this very long list that the failure of the husband becomes so obvious. I refer to particular court orders made and failures to respond:

There were other orders with which he didn’t comply. But I am running out of the alphabet!

So, what is the consequence?

Having been given many opportunities to set out what is his financial position, income from all sources from the time of the separation, reasons for the dramatic decrease in his fortunes and therefore less available income, his outgoings and committed expenditure, he has steadfastly, persistently and consistently refused. He may have been angry about originally not seeing their child but that was no proper response especially as the opportunities were actually to help him present his own case. He may have felt there had been multiple orders made, and he was right; the court was undoubtedly in retrospect far too lenient upon him but it is better to be unduly lenient than unjustly harsh. He may have had no confidence in the way in which the matter was conducted but he would have been advised that it was in his own best interests to comply with the court orders in order to state his case. But he didn’t.

The consequence is simple. If, with multiple opportunities to state present financial circumstances and produce corroborative evidence of the change, a party doesn’t do so then the court is reasonably entitled, fully entitled in law, to proceed on the basis that there has been no change and his financial circumstances are as before. If that’s not so, then he has himself only to blame and cannot criticise this order or the approach adopted by his wife’s lawyers in advance of this hearing or enforcement action they now take.

This is straightforward and clear. Whatever assets were acquired during the marriage relationship should be shared equally. But this sharing is trumped by needs, invariably the needs of the parent with primary responsibility of the child. It’s not clear to me what were any marital assets. It is clear to me that they are fully trumped, subsumed, by the needs of the wife for herself and the child. This is a needs-based case.

I am not aware of any capital assets against which an order could be made to provide accommodation for the child. There are certainly assets such as watches and shoes for which no account has been given satisfactorily by the husband, and indeed accounts given for disposal of them are dishonest, and these can be the subject of enforcement for arrears, costs orders and similar. But there is nothing against which I can presently make capital order for accommodation.

So this case is about provision for maintenance for the wife.

There have been 2 very recent relevant decisions. Mahtani (2025) EWFC 35 by James Ewins sitting as a deputy High Court judge and VTY v GDB (2025) EWFC 110 by Recorder Rhys Taylor and I refer specifically to clauses 66-81 : https://assets.caselaw.nationalarchives.gov.uk/ewfc/b/2025/110/ewfc_b_2025_110.pdf

I appreciate it is often judicial custom for judges to restate the law. This is a common law tradition but unfortunately where the restatement is not absolutely the same as previous statements it risks creating nuances, possibilities for argument and potential litigation. I see no such purpose here. I have read carefully what has been said on the law, the clauses above, by Recorder Taylor and agree with him entirely and repeat it here as if within this judgment as to principles of financial provision, questions of nondisclosure, questions of adverse inference and the approach of the court.

As I say at the outset, I’m not sure ultimately that I have to go entirely down the road of adverse inference. It is for a party to state their case, give disclosure and, where it differs from previous known disclosure, state what is the present position. If they do not, then the court is entitled to be sceptical and suspicious that the previous known disclosure, or something like it, has continued.

What else is relevant here?

We have the very questionable financial arrangements with his parents. He gave evidence that they were not wealthy; had worked hard throughout their life and lending him about £40,000 or thereabouts deposit for rental and upfront rental had been a significant chunk of their financial arrangements. He said he agreed they took from the money he was receiving from his US companies, employers and others as part payment of this loan. However the consequence of their doing so was that he was often left short, insufficient for his outgoings and therefore his parents would give him more money to live on and thereby add even more to the loan outstanding. It seemed to make no sense. Why could he not be paid direct in England from the US? Why could he not have a US bank account to receive the substantial amounts and then remit to the UK as he wanted? He could still have paid back his parents as he was able. But there would have been no mixing and mingling with their accounts. It would have been a straightforward arrangement. Moreover why borrow £40,000 or thereabouts to pay leasehold rental for a year or more upfront? Was this required by the landlord? Nothing was said. One would ordinarily only do that in the expectation that e.g. a large commission payment would be coming through fairly quickly. Moreover when given the opportunity to explain what he himself was receiving, he did not take it. Then when asked for their bank statements even with redactions for their privacy, nothing was produced. In these circumstances I am fully entitled to form the opinion, and I do, that they were and are hoarding money on his behalf in their bank account pending the outcome of these proceedings. In circumstances where he had been given the opportunity to explain and didn’t, why should the court believe him and his difficult to comprehend explanation? Why should the court not make an adverse inference that his failure to give a good explanation, when that opportunity was given to him, is indicative of non-disclosed resources. I do

We have other indications. The story he gave at the December 2023 hearing in respect of going to see a law firm who then trotted off with him to a pawnbroker and his significant collection of watches and then collection of training shoes and other chattels was pawned to raise funds for lawyer fees was highly surprising at best and completely denied by the law firm. Instead they gave an account of a failure to pay legal fees and having a judgment which was being enforced against him for outstanding fees. He had the opportunity to oppose their story, stick to his original story and give narrative statement with pertinent detail e.g. a description of the pawnshop, a list of the watches and training shoes that were pawned and a list of the legal fees, said to be in excess of £200,000, but he didn’t take it. For the record the account given by the law firm is accepted. There was no money laundering breach. But it means that the husband still has the watches and the training shoes and similar chattels. When he was given an opportunity to provide a list with his own approximate valuations, he didn’t take it. Again this court proceeds on the basis that he gave a dishonest account, they were never pawned, and he still has the items and simply refuses to disclose.

In the context of nondisclosure, the court has to build up information where it is available. One of these is rental. We know reliably that until April 2020, shortly after separation, he was paying rental of £5400, £65,000 per annum. From April 2020, the rental was about £4200, £50,000 per annum, not significantly different and indicative of his confidence in his income. Justifiable confidence from what we have seen from his luxury lifestyle outgoings. Well able to meet the rental out of taxed income. From March 2023 until March 2025, he had accommodation for which he was paying £2832 per month. Yet he has purported to suggest that for some of that last period, he had been barely earning £4000, perhaps £5000 per month, gross of tax. This is thoroughly inconsistent with the level of rental to which he had committed in March 2023, which I remind myself is 6 months after he asserts there was a catastrophic fall in his available income. This is further indication that his version of events has no truthfulness.

Most recently he took other accommodation, still very attractive in Chelsea Harbour area, paying £2000 per month. Again this is not consistent with somebody anxious about receiving, as he was asserting, only about $4000 per month. Either he had substantial capital on which he could call, or he reasonably anticipated substantially greater income.

But was he really renting there? There is here another very curious fact indicative of other resources, probably of far greater income.

On 23 January 2025, having received some bank statements from Lloyd’s bank in relation to a company, CAR Limited, (anonymous name not real name of company) with which the husband was clearly associated, the wife law firm analysed and put various forensic questions to the husband. He ignored the letter entirely. He was wrong to do so. This was an excellent letter, well researched, carefully setting out analysis of bank statements, asking genuine questions and seeking fair answers so that they could better understand. They put various matters to him inviting him to respond and he didn’t.

They found that for the period March 2023 until November 2023, a time when he was renting at £2832 per month, he paid £44,000 or thereabouts on rental to the GA Hotel, a hotel of self-contained apartments. About £5000 per month. In the witness box he said this wasn’t him. He tried to suggest it was for conference facilities, but it doesn’t appear as if the hotel has such facilities. He tried to suggest it was other members of staff in which case what were they earning for him and what was this work in England in circumstances where his work was US-based? All very good questions but he wouldn’t give an answer. Was it that he had dummy cheap accommodation whereas in reality he was still continuing to enjoy far more luxurious accommodation. This looks the most likely explanation in the absence of any good disclosure from the husband.

Then in the period October 2023 until April 2024 from the bank statements which were obtained, he spent about £16,500 on Deliveroo, about £2500 per month. It’s likely this was him because the item in October 2023 was for a children’s story CD. Again we see a lifestyle under the control of the husband completely at odds with what he suggests was in reality his income. Yet again he has shown his assertion of a dramatic change, of the meagre income he says he was receiving, to be almost certainly dishonest and an attempt to evade knowledge. It’s now very clear to me that if he had produced all of the various bank, credit card and other accounts on which his lifestyle expenditure appears, we would have seen quite probably the lifestyle of August 2022 continuing. Here is very probably the reason for his nondisclosure. He did not want the truth to be known.

Further on in that letter they draw attention to other pieces of evidence indicating other employment by the husband which he hasn’t disclosed. There is no need to go into yet more detail here.

There was a child support assessment. The husband appealed. The appeal decision is in the papers. After analysing, they came to the conclusion that his English income arising was, or was in excess of, about £150,000, being the level at which the assessment loses jurisdiction. This was a completely independent process from the family court, and yet they were also wholly unconvinced by the story given by the husband. So is this court. If it is the case that he is earning £150,000 per annum or much more, then he can certainly pay the amount sought by the wife and must.

He was ordered to produce US tax returns. He didn’t, arguing that his income was of such a low level. No expert evidence has been produced but I am bound to record that the levels of remuneration by him, perhaps £60,000 per month as he himself described or perhaps more, would undoubtedly cause obligation to account to revenue authorities to kick in. It may be that he hasn’t filed tax returns but it cannot be because of the explanation he gave.

I have indicated that I’m not willing to make an immediate capital order. But the wife says understandably that he may well have capital which he is concealing. There is a short body of case law, Quan v Bray (2019) EWFC 46 and Joy v Joy (2017) EWHC 2086, in which capital claims are adjourned and can be restored. In these cases they have been adjourned generally with no final date. I do not think that general adjournment is fair in this case. I think the final date is 10 years and if it hasn’t been restored by then, the capital claims would be dismissed. This is not the opportunity for capitalisation, which doesn’t need reservation of capital claims. It is instead more likely to be the opportunity for provision of purchased accommodation for the wife and the child, or just the wife, in circumstances where perhaps the husband demonstrably has capital available to him.

In retrospect, this case could have proceeded in December 2023, especially now we know the response of the husband. He had had multiple chances already to give disclosure, especially the July 2023 order and had not. Some courts might have robustly gone ahead. I am still satisfied it was right and fair to give him the chance to explain even if in retrospect he did not take that chance. This is how a fair justice system should work. But not having taken the chance to explain what had happened to his finances, specifically refusing multiple opportunities to be able to state his case, explain corroboratively with evidence what differences had occurred, and yet with a number of contra indicators, this court is satisfied that he has not shown any reason to believe his finances have materially changed from the latter years of the marriage including from the separation until summer 2022. This court is satisfied that he has been receiving a good level of remuneration for some or all of that subsequent period, and has either been recklessly spent, without any paper trail being provided, or is held for him, perhaps by his parents or elsewhere.

As part of her claim, the wife seeks periodical payments for rented accommodation. This is a family which has rented rather than purchased. In pitching the level of that accommodation, I don’t think it’s right to have figures of £4000 or even £5000 despite the husband thinking that’s quite appropriate for himself. But I am conscious that in March 2023 when on his account things were not good, he was nevertheless renting at £2850 per month. In seeking some sort of standard, I think that is a benchmark for the wife and child. In addition, there must be spousal maintenance for the wife which will include provision for the child on the specific basis that any future payments the husband makes to the child support administrative organisation acts as a direct credit for the spousal maintenance.

The wife seeks £5500 in total therefore the differential from the rental is £2650 namely about £32,000 per annum. In the context of the income of the husband and his own expenditure and luxury lifestyle, this does not seem unreasonable for her and the child. I allow it.

The maintenance starts from first August, in advance, at £5500 per month. I fully acknowledge the husband may have irregular receipts. That’s the nature of the form of payment and the work he does. But the wife and child must have regular payments and he must arrange his affairs so that each month, on the first of the month in advance, this payment is made.

Any future payments he makes for child support through the agency, not arrears, will act as a credit.

I am told he owes £11,000 in arrears of the spousal maintenance order. This must be paid by the end of September.

I’m told he has arrears of child support of £25,000 and that is a matter outside the jurisdiction of this court. I am not backdating the spousal maintenance order but this wife and child have been without a proper and appropriate level of support for several years and they are entitled to these back payments.

I am told that the landlord of the property in which they were living as the last matrimonial home is for some reason pursuing the wife for arrears of rental of about £15,000. Given that she wasn’t working at that time, I don’t see how she could be liable. Apparently the last contact she had was 2021. She is giving an undertaking that she will make no active steps to contact the landlord or advisers i.e. encourage or precipitate pursuit of this claim, and on this basis the husband must indemnify her forthwith if they pursue her and any payment is made.

There is a debt owing to the company known as FH and this is being actively pursued against the wife. They are apparently waiting to hear of the outcome of these proceedings and the amount owing is about £1680. If there is a requirement for her to pay, the husband must indemnify forthwith.

Throughout these proceedings costs orders have regularly been made against the husband. On a couple of occasions, they were reserved and subsequently quantified. I think there are at least 3 reserved costs orders awaiting assessment.

The wife seeks her costs which are on a legal aid basis. I’m told the total costs of the entire financial remedy proceedings, including former lawyers, are £38,818. I am amazed. This is incredibly low. Her lawyers have done excellent work pursuing this matter and she is entitled to have this paid. No good reason was given by the husband in answering the claim for costs nor could there be. From the very beginning, the very first hearing, the first appointment, he has failed and failed and then failed again in his duty of disclosure either generally or in specific response to orders. It is difficult to find a case where it is so obvious there has been litigation misconduct and there must be a costs order, FPR 28.3.6 and .7. This is specifically where the statutory charge will apply.

Instead of lots of costs orders, including more assessment of individual hearings, I’m satisfied that her entire costs as claimed are thoroughly reasonable, in reality incredibly low, and should be met by the husband and paid by the end of September. As a consequence, this will be in substitution for the previous costs orders already made which will no longer be enforceable.

I was asked to say this order carries a penal notice as to spousal maintenance. I refused. This is hopefully a way marker on the journey. This is a defining point where a substantive order has been made. I do not want this husband, including as father of the child, in prison. This will help no one. It might be appropriate subsequently but that is for another day. It’s unreasonable here now.

I’m fully aware enforcement might be in America. My understanding is that America is also a signatory of Hague 2007. I make it clear this provision in the order is maintenance in accordance with the terms of that Convention and other international laws. I reasonably anticipate the relevant courts and administrative authorities in America, perhaps from whence the husband is paid by way of attachment of earnings, perhaps by way of orders against the parents or otherwise, will use their best endeavours to bring about appropriate enforcement of this order if this shall be required. Of course, all the orders in this case and my 2 judgments can be produced to any organisation involved in any enforcement.