Non-disclosure in financial remedy proceedings

Going through a separation can be a difficult time that is often fraught with many uncertainties as to what the future will look like.

Divorce does not separate the financial ties between you and it is therefore important to ensure that you get a financial order put in place as part of your divorce. A financial order will record the terms of settlement and can, if necessary, ensure that all future financial claims are dismissed to achieve a clean break between you and your spouse. This can be made either by consent following negotiation/mediation or, if you are unable to agree matters between you, by a judge at the end of financial remedy proceedings, having considered the statutory factors set out in s25 Matrimonial Causes act 1973.

Whilst many marriages may involve a degree of financial cooperation between the parties, this is not the case for all marriages. Perhaps you are contemplating divorcing a spouse who always took sole responsibility for management of the finances, to your exclusion? If so, you may understandably have concerns in respect of possible non-disclosure.

There are, however, a number of options available to you that can assist in prompting disclosure. The first step is to issue financial remedy proceedings; the reason for this is that a party cannot be compelled as part of the mediation or negotiation process to provide full and frank financial disclosure (though they should of course do so). A failure to provide disclosure to the court brings with it significant penalties, and can even result in criminal prosecution for fraud.

The options available in financial remedy proceedings to assist with prompting disclosure includes (but is not limited to) questionnaires, applications for third party disclosure and costs orders. If a spouse fails to comply with court directions for disclosure then the court may be minded to make a court order with a penal notice attached, breach of which will result in the party being held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law (see Family Procedure Rule 37.2).

If you are faced with a particularly difficult spouse who is not forthcoming with their disclosure but you have knowledge or information which suggests that the picture being presented by your spouse is not an honest one, it is highly likely that they will be forensically cross-examined at a final hearing in respect of their disclosure or lack thereof.

If, on the balance of probabilities, there is evidence to suggest that the disclosure provided by a party is materially deficient, then the court retain the ability to draw adverse inferences against that party in respect of what assets and/or income they have, provided that such inferences are properly drawn and reasonable. It is also likely in such a scenario that a costs order will be made against the non-disclosing party for failure to comply with court directions and for exhibiting bad conduct.

If you are wanting advice in respect of divorce and/or a financial separation, please do not hesitate to contact our legal experts at Pepperells Solicitors.