Following our report on the recent investigation into the effects of fraud on divorce settlements, we thought it might be useful to look a little further into what non-disclosure means for divorcing couples.
First it’s important to know that it is both very rare and very difficult to hide your assets. It is not unusual for a husband or wife to say “I don’t know where the money has gone, there must be an offshore account!” When you sit down and think about it, you’ll probably work out that those holidays had to be paid for somehow, and how children’s school fees will have eaten into income and savings over the years, and that ‘trust fund’ that you thought was going to keep you in luxury may well turns out to be nothing more than a few hundred pounds left by Great Aunt Mary aeons ago…
During the Financial Remedy process you are both under a duty to of you and your ex to give a full, frank and transparent disclosure of your finances and assets, no matter what method of dispute resolution you choose. Whether you go to court or try to settle your disputes through a private collaborative process like mediation, you will both be required to sign an agreement or Statement of Truth which confirms your intention to provide your solicitor with full disclosure of your finances, assets and situation. A fair settlement cannot be made if the information is not accurate, and it’s imperative that you enter into separation openly and honestly. Any complications or manipulations of the process will only draw it out and cause you more stress, cost and time.
Non-disclosure or disposal of assets may be as simple as one party conveniently forgetting to mention a certain bank account, or it may be more subtle, transferring assets to an account under someone else’s name, or drawing down equity on a property and spending the proceeds. You may have a good idea about your spouse’s financial position or feel that he/she knows yours but your solicitor doesn’t, so refusing to provide something because “he/she knows” doesn’t work. Your solicitor will want to see documents evidencing what your spouse has to say about their finances, and may even want to ask questions to ensure that secret bank account doesn’t slip through the net
So what happens if one of you is not completely honest about your assets during the separation process?
Non-disclosure in court
The courts require that both parties provide full financial disclosure when entering into the divorce process, and failure to do so may result in a penalty, for example: the guilty party could be ordered to pay their ex’s legal fees, or an adjustment to the settlement may be made in favour of the other party.
If one of you is discovered to have withheld information, the court can issue an order to the guilty party in several ways:
- By preventing the disposal of further assets, or requiring the retrieval of assets that have already been disposed of.
- By freezing assets and preventing the disposal of future assets, for example: pensions or investments.
- By searching for further assets or information about the way assets have been hidden. The court can even overturn an order made by consent after the event if it is found that you or your spouse has deliberately misled the court.
Non-disclosure during the collaborative process
There are several alternatives to a court divorce that allow you to resolve your differences privately and in a less combative manner. These include: arbitration, mediation and collaborative family law. Due to the cooperative nature of these methods the temptation for non-disclosure may be higher, since the setting is more informal than court. However, any agreement settled during out-of-court processes is legally binding, and the intentional withholding or misrepresentation of information will be taken just as seriously as in court divorce.
If, at any time during the process, you or your solicitor believes that your ex is not keeping to the terms of the agreement, you may be advised to withdraw from the process and see further legal action against them. Mediation and collaborative family law are based on good faith and cooperation, and if this is made impossible due to non-disclosure, you may wish to take your case to court, instead.
Whether you separate in or out of court, the most important thing to do if you suspect your ex of hiding assets is to notify your family law solicitor at once and provide them with as much information as you can so that they can determine whether action needs to be taken. Never take things into your own hands and try to access your ex’s personal computer or files – this is a criminal offence and will be taken very seriously.
If you need help with family law, mediation, divorce or separation, the friendly and experienced solicitors at Frances Lindsay & Co will be happy to talk you through your options. Let us take some of the weight off your shoulders and ensure you get the settlement you deserve.Tags: arbitration solicitor Buckinghamshire, collaborative family law Berkshire, court divorce Thames Valley, divorce solicitor Thames Valley, mediation solicitor Windsor, non-disclosure