Financial Disclosure on divorce – Frequently asked questions

The general rule is that a solicitor must keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents. This reflects the duty of confidentiality.

As part of the financial disclosure process, both participants are required to disclose the last 12 months of each account in their sole name or that they have an interest in at the time of the disclosure on a Form E Financial statement.  If you fail to do so, adverse inferences may be made.  You may also be required to provide updating statements as the case progresses.

If you have made a financial application to the Court to deal with the financial arrangements, the Court will set a date, that you must complete a Form E, (together with the supporting documents) and a date that you must exchange your financial information in a Form E – Financial Statement.
 
The contents of each party’s financial statement will be summarised on a joint Schedule of Assets, and this will list all assets and liabilities for each party.
 
You have a duty to the court to give, full, frank, and clear disclosure of all your financial and other relevant circumstances.
 
The Court require you to attach documents to the form where they are specifically sought, and you can attach other documents where necessary to explain or clarify any of the information that you give.
 
If you are seeking to negotiate a settlement or resolve the financial arrangements by other dispute resolution (such as Mediation, Collaborative Law, Solicitor led negotiation), you do not have to provide full and frank financial disclosure on a Form E – Financial Statement to reach a financial agreement.
 
However, it is strongly recommended, and if you instruct family law solicitors to act on your behalf in relation to drafting an Order to reflect the terms of the financial agreement (referred to as a Consent Order), then in most cases you will be asked to sign a Legal Disclaimer, to indicate you have been advised to obtain financial disclosure, but you are choosing not to do so.
 
It should also be borne in mind that when sending the Consent Order to the Court, the court will require a summary of your respective financial circumstances on the Form D81 – Statement of Information form.

If proceedings are ongoing and one party has failed to give full and accurate disclosure, the court may draw inferences in relation to their financial circumstances and make a financial order.
 
If proceedings have concluded and it then comes to light that one party failed to give full and accurate disclosure, this may result in any order the court made being set aside. If you are found to have been deliberately untruthful, criminal proceedings may be brought against you for fraud under the Fraud Act 2006.
 
The Form E – Financial statement information should be confirmed by a Statement of Truth. Proceedings for contempt of court may be brought against a person who makes or causes to be made, a false statement in a document verified by a statement of truth. If you are held in contempt you can be fined or sent to prison.
 
The Court may also order that, the party that has failed to provide financial disclosure is also responsible for paying the others legal costs.

In order to determine whether assets have been hidden, financial disclosure will need to have taken place on a Form E – Financial Statement, together with the documents set out on the form regarded as essential.
 
At this stage, it is recommended independent legal advice is obtained from a family law solicitor (if you are not instructing a family law solicitor to assist with this). Your family law solicitor will be able to review the financial disclosure, and as part of that process will prepare a list of questions to clarify or explain the financial disclosure. These will be discussed with the client first, and if the answers are known by the client, the questions can be removed. If the client does not know the answers, the questions can be put to the other party to answer.
 
If following responses from the questionnaire, there are still gaps in the financial information, the court can be asked to assist with directions to request compliance with providing the information required. What directions are appropriate, will depend on the circumstances of the case.
 
It may also be possible to apply for a third-party disclosure order, which allows your solicitor to obtain documents from organisations like banks, building society’s and HMRC or the Court may direct that a freezing order is put in place, to stop the other party from dealing with assets until the proceedings have been resolved.
 
Alternatively, the court may direct that a forensic accountant or such other expert as appropriate, can be instructed to review the financial disclosure to set out any issues or questions.
 
If you have concerns that assets may be hidden, you should tell your solicitor as soon as you have concerns.

It is possible to enter into a pre-nuptial agreement before you marry to set out what should happen in relation to your financial arrangements should you subsequently divorce.
 
If you are already married, it is possible to enter into a post-nuptial agreement to set out exactly, how your finances will be dealt with if you later divorce.

If the account is in your sole name, legally, you are entitled to empty your bank account at any time. However, if this is carried out just before a divorce, it would not be recommended and would be inadvisable, because such action would be seen by the other party and the court as a deliberate attempt to deprive the other party to those funds in the financial arrangements. If the matter was being considered by the court, the court may consider such action as ‘conduct’ and may penalise that party when deciding who should get what at a final financial hearing.