Case summary: Neil v Neil [2019] EWHC 3330 (Fam)


  • Terry
    Neil (“H”) and Soraya Neil (“W”) married in 2007 and separated in 2014.
  • After
    mediation they created a Memorandum of Understanding (“MOU”), which made no
    provision for spousal maintenance and which created a charge on W’s new
    property in H’s favour if the FMH sold for more than a certain amount.
  • W’s
    solicitors, XYZ, drafted a consent order on the basis of the MOU. On W’s
    instructions, XYZ then included a nominal maintenance order of £1 pa and
    removed the charge back clause.
  • XYZ
    sent the draft to H along with a letter saying it reflected the terms of the
    agreement reached at mediation (despite the amendments.) W and H both signed this
    first draft order.
  • W
    was negotiating a mortgage with Coutts and sent them an unsigned draft order,
    which had included in it a clause saying that H would pay periodical payments
    of £66,000 pa (£5,500 pcm). On this basis W’s mortgage application was successful.
  • Coutts
    then said that they needed to see a signed draft order and to receive written consent
    from H stating he was happy with the divorce settlement. W sent a copy of the
    draft order (with provision for periodical payments of £5,500 pcm) unsigned by
    her but purportedly signed by H, to Coutts.
  • An
    email was then sent from H’s email address to Coutts confirming the spousal
    maintenance arrangements. H said W must have sent this from his email address.
  • W
    signed the final order, with the substantial periodical payments clause, and
    there was a signature purportedly from H on the document.
  • In
    2017, H made an application to set aside the order on the basis of forgery and
  • Separately,
    following chancery proceedings, H made an application to commit W to prison for
    contempt of court and W was duly committed to prison.


  • Was
    the order procured by forgery and fraud and should it therefore be set aside?
  • If
    the order was indeed set aside, did the court have to set the case down for a


  • Mr
    Justice Moor found that:
  • Without
    H’s knowledge, W got XYZ to amend the MOU to delete the charge back and include
    nominal maintenance of £1 pa.
  • H
    signed the first consent order thinking it was in accordance with the MOU
    (having failed to read it through carefully, or instruct legal advisors of his
  • W
    sent Coutts a document which she accepted she falsified by changing maintenance
    of £1 pa to £66,000 pa to get the mortgage she wanted, and then sent them
    another document to which she added H’s signature from an earlier document.
  • She
    sent fraudulent emails to Coutts purporting to be from H when they were
    actually sent by her, and H knew nothing about this.
  • W
    sent back the final consent order with a signature on it from H, and although
    Moor J could not be sure that H did not sign it, he was sure that H was not
    aware of what he was signing.
  • H
    was very naïve and W was thoroughly dishonest. Moor J had never before come
    across a court order obtained by fraud in the way W obtained the order
    dishonestly, which was conduct of the most serious nature under s 25(2)(g).

  • As
    a result, it followed ‘as sure as night follows day, that the Husband is
    entitled to a set aside of the order’ [78]. However, H only sought to set aside
    the periodical payments order and for Moor J to determine the amount W owed to
    him regarding the proceeds of sale of the FMH.
  • The
    order provided that W should receive the first £1m of the proceeds of sale of
    the FMH and that H should get the balance. Since W had already paid £100,000 towards
    the balance of £348,930, Moor J ordered that she should pay £248,930.
  • Since
    the case was ‘crying out for a final determination now’ [81] and Kingdon v
    [2010] EWCA Civ 1251 is authority for judges not having to set cases
    down for rehearing if they are clear as to the correct outcome, Moor J
    immediately imposed a clean break because there was no realistic prospect W
    would get a substantive maintenance order against H.
  • Moor
    J decided not to report W to the DPP but noted he ‘undoubtedly would have done
    so had she not already served an eight-month sentence for contempt’ [88].
  • W
    was ordered to pay H’s costs on the indemnity basis given the serious findings
    of fact made.