Tensions run high in divorce proceedings, especially when it comes to money, and people quite commonly suspect that their ex-husband or ex-wife is hiding something. But what do you do about it?
The law is quite clear that in resolving financial issues arising from a divorce, each party has to give full and frank and clear disclosure of their financial resources and other relevant circumstances. That includes not only their financial position, but other issues including any intention to remarry or to live with someone else.
In court proceedings both parties are directed to complete a Form E, which is the document in which they set out primarily their financial situation. Previous versions of the form had to be sworn on oath in front of an independent solicitor, but the present version just requires self certification that the contents are true and complete. Nevertheless, that certification is treated seriously by the courts. Certain documents have to be attached to the form E, to confirm the information given in it, including 12 months statements for all bank accounts. Each party then has opportunity to examine the other’s form E, and the documents attached to it, very carefully, and to ask for additional information and documentation particularly if the form E seems incomplete, or the documents attached suggest that other assets are being withheld.
A party who is found to be misleading the court, by withholding information about assets and income, is likely to be penalised by the judge making orders for costs against them. The judge can also, in certain cases, fill in the gaps for themself, by deducing the value of the missing assets, which may be to that person’s disadvantage.
When we are trying to negotiate a settlement without court proceedings, it is very common to agree to complete and exchange form E in the same way. So in either context you can expect your finances to be scrutinised very closely.
But it would be foolish to imagine that no one has ever misled the court, and occasionally these things come to light later. What can you do?
The answer is that you can apply to the court to set aside any court order (including a consent order) on the basis of failure to disclose. Such applications are not straightforward and need to be thought about carefully. The court’s approach will depend on whether the case concerned innocent, non-fraudulent disclosure on the one hand, or fraudulent or deliberate nondisclosure on the other hand.
If the nondisclosure was innocent and nonfraudulent, the court will only set aside the order if a substantially different order would have been made, had the facts have been properly disclosed. If the nondisclosure was deliberate and fraudulent the order will be set aside if the nondisclosure has deprived the innocent party of a real prospect of doing better at a full hearing.
A recent case* concerned a parallel, slightly different, situation where one party actually forged the signature of the other party on court documents. In that case there was a divorce, and a consent order, and the house was transferred into the wife’s sole name. The judge decided, on the basis of evidence from a handwriting expert, that the wife had forged the husband’s signature on at least four key documents, including the application for the consent order, and the document (the TR1) which transferred the house to her. So the judge set aside the orders made, and reopened the case. He ordered the wife to pay most of the husband’s legal costs.
The judge in that case also considered whether his findings should be released to the police, and to the wife’s professional body. The court proceedings of this type are generally confidential, so information from them cannot be revealed to anyone, except by direction of the judge. In this case the wife was an accountant, so it is likely that her professional body would have taken a very dim view of what she had done, and would probably have struck her off. The law in this situation is that, although the judge has power to release his findings, they should only do it exceptionally rarely and for very good reason, where the court makes findings about things which are so serious that a disclosure has to be made in the public interest.
In this particular case the judge decided, that the public interest argument did not carry sufficient weight to justify releasing his findings, which is perhaps surprising where an accountant, who is supposed to be a trustworthy individual, apparently forged signatures on important documents, including a property transfer. If solicotr did that they would almost certainly be struck off, and probably sent to prison.
*MS-v-FS[2020] EWFC B9
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple Tree Family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.