Judgment by DDJ G Evans in a modest asset case involving significant non-disclosure and the taking of evidence from a respondent in a non-Hague Convention jurisdiction (here, Pakistan).

Background

The parties had a medium-length marriage of just under nine years, with three minor children residing with the Wife. The visible assets were notably limited. The Husband's Form E was deficient from the outset, lacking crucial bank statements and full details of a repossessed property he had legally owned. This pattern of non-disclosure continued, necessitating penal notices and third-party disclosure orders.

The Husband, habitually resident in Pakistan, consistently claimed nil income and that he was supported entirely by his family. He alleged substantive liabilities, including £112,000 negative equity on a repossessed property (Apartment B) and over £200,000 owed to family members. He explained substantial payments into his accounts as his father's funds, transferred to avoid bank charges, and attributed significant cash deposits to an informal gambling ring.

The Husband applied to give evidence remotely from Pakistan shortly before the final hearing, citing medical reasons (anxiety and aerophobia) supported by two brief letters from a doctor in Lahore. The Wife’s argument was that this application, made just a week before the final hearing, effectively presented the court with a fait accompli.

Issues for determination

1. Whether the Husband's application to give evidence remotely from Pakistan should be permitted, given the FCDO guidance regarding non-Hague Convention jurisdictions.
2. Whether adverse inferences could be drawn against the Husband for his persistent and significant non-disclosure of financial affairs.
3. The quantification of the Husband's income, earning capacity, and hidden assets for the purpose of a needs-based award.
4. The treatment of the Husband's asserted ‘soft debts’ and other alleged liabilities.
5. The appropriate financial remedies order, including any indemnities against undisclosed liabilities.

Discussion

Taking of evidence from outside the jurisdiction

The judgment examined Practice Direction 22A, para 17.1 and Annex 3 (‘Video Conferencing Guidance’), which supports Video Conferencing but cautions that convenience should not dictate its use.

Annex 3, para 5, requires enquiries to the Foreign, Commonwealth & Development Office (FCDO) to be made where there is doubt about a foreign government's willingness to allow examination. The gov.uk website's guidance on ‘Taking and Giving Evidence by Video Link from Abroad’ for Pakistan explicitly states that agreement has not been obtained for voluntary remote evidence in UK civil, commercial, or administrative tribunals. Pakistan is not a signatory to the 1970 Hague Evidence Convention. The court also considered the informal guidance from FRC Leadership Judges that prior authorisation is generally not needed in family cases unless it may expose the witness to risk of prosecution or similar serious consequences in that country.

DDJ Evans acceded to the Husband's application, balancing the overriding objective against the practical and diplomatic concerns, particularly to avoid an adjournment and further drain on court resources. However, the FCDO's formal response, received after this decision, indicated that a formal Letter of Request through diplomatic channels would typically be required for taking evidence by videoconferencing in a ‘civil or commercial matter’ from Pakistan. The judge highlighted the significant practical difficulties encountered during the remote evidence due to connectivity issues and called for formal clarification on this point to assist lower courts.

Adverse inferences for non-disclosure

The court applied principles from NG v SG (Appeal: Non-disclosure) [2011] EWHC 3270 (Fam) and Moher v Moher [2020] 1 FLR 225, which permit the drawing of robust adverse inferences against non-disclosing parties where there is a strong prima facie case of hidden assets or income.

The court found:

‘that there is family money and perhaps non-family money too (e.g. in undisclosed bank accounts) in Pakistan to which he is entitled, and I do not have to quantify that money, I simply have to say that there is enough to meet the award that the wife seeks.’

Income and earning capacity

The Husband's claim of nil income was rejected. Significant payments from two service stations, often labelled ‘salary’, were found to be remuneration. The judge determined a reasonable earning capacity of £136,000 based on funds received in 2022.

Hidden assets

The court found that £47,700 had been transferred by the Husband from his UK accounts to a Pakistani bank account, which was subsequently closed. The judge concluded that these monies were ‘hidden from the view of the court’ and that the Husband ‘deliberately transferred money out of the jurisdiction in order to evade the watchful eye of this court and to try to defeat a claim for financial provision from his wife’.

‘Soft’ debts and third-party resources

The Husband’s extensive alleged liabilities were largely dismissed. Apartment B was found to be beneficially owned by the Husband's father, with associated liabilities to be met by him. The alleged family loans were deemed ‘soft debts’, consistent with guidance from HHJ Hess in P v Q [2022] EWFC B9 and not liabilities the court was required to consider, ‘not least in terms of timing, and not least in terms of someone who is a non-discloser’.

Decision

Considering the welfare of the three minor children as the first consideration, and the Wife's inability to meet her needs on her current income, the court made an order for a series of lump sum payments totalling £55,583, payable in four six-month instalments over two years. The court was satisfied that the Husband's found earning capacity and hidden resources were sufficient to meet this award.

Furthermore, given the Husband's lack of transparent disclosure, the court ordered a broad indemnity for the Wife against ‘any liabilities for which she may be pursued arising from the parties’ relationship’, acknowledging the difficulty in identifying specific liabilities due to the Husband's non-disclosure.

A clean break was ordered upon satisfaction of these lump sums.