Written by Elizabeth Stocker

Senior Associate at Freeths

Elizabeth specialises in advising clients on the breakdown of their relationship, whether they are married couples seeking a divorce or couples who live together wishing to separate.  Having trained with Wilsons LLP and qualified in 2009, she joined the firm in 2010. Since joining she has become a member of the local Resolution Committee.

It isn’t unusual for one person, let us say the husband, within a marriage to be in control of the parties’ finances. This does, however, mean that the other party has little or sometimes no knowledge of their financial circumstances.

If the financial matters that need to be resolved, when going through a divorce, are or become bitterly contested, there can be all sorts of allegations of non-disclosure or even fraud against an ex who does not disclose details of their financial circumstances or discloses income and assets that may be a lot less than what the other party expected.

A party going through a divorce cannot take any action that would deliberately minimise the other party’s claim. To do so could, potentially, even amount to fraud.

There have even been cases where one party, again let us say the husband and in anticipation of getting divorced, may try and divest himself of assets so as to produce a more modest balance sheet but a party who does this, has to be very careful. A party going through a divorce cannot take any action that would deliberately minimise the other party’s claim. To do so could, potentially, even amount to fraud. This could mean that any financial settlement reached during a divorce could be set aside and potentially, in the case of fraud, the guilty party might even be prosecuted for perjury.

To offer some sort of reassurance, each party going through a divorce has an ongoing duty to provide full and frank disclosure about their finances until a Financial Consent Order is made. It is only on the making of such an Order, that the financial settlement the couple reach is legally binding on them both.

It is also important to remember that your Instructing Solicitor, if you use one, are Officers of the Court. This means that they cannot mislead the court, neither can they present a financial picture that does not represent truth. Furthermore, solicitors cannot continue to act for a client who refuses to tell the truth.

Judges do not like a party that does not comply with the duty of full and frank disclosure. If one party refuses to disclose financial information or deliberately delays the court process it can lead to a Judge drawing an adverse inference from their behaviour, to their detriment.

Depending on your concerns about the finances – it is possible to freeze the other party’s assets if you are certain that the other party, again let us say the husband, is shortly about to sell or get rid of assets with the intention of preventing you from receiving some of that financial benefit. This is not just limited to assets in the UK, it can relate to assets worldwide.

So, on a practical level what can you do then if your ex has money all over the place?

First, it is important to remember that you must not open your ex’s post or log in to their email or accounts. Up until 2010, it was possible to do this and make copies of information found, a useful tool if one party thought their ex was trying to hide assets. However, a case, now known as Inerman, swept away those rules meaning you can no longer use information obtained in that manner. So, do not be tempted to do this but do make a note of any information about assets (e.g a statement that is left say on the kitchen table or in a room that you both normally use, i.e. a joint study. This can then be cross-checked against the information your ex does provide when you exchange financial information in due course.

Secondly, make a list of what you do know the two of you have together, as this will be a useful checklist. Your lawyer may also want to know about certain aspects of your relationship that might be indicative of your lifestyle during the marriage. With this in mind, also make a note of what holidays you took, where did you travel, how much was the cost and how were the trips paid for? How often would you eat out?

Also, remember there are different ways that couples can reach a financial agreement and most processes will require exchange of financial information. Once that exchange has taken place, there is then the opportunity to ask questions on the other party’s disclosure. It’s at that stage, that if you think information is missing or has not been fully disclosed, questions can be raised in the hope that the other party will then provide full and frank disclosure.

Furthermore, whilst it is always a very last resort, there is always the ability to ask the court to deal with the financial matters. In that scenario and once the court timetable has been issued, if one party still does not comply then at that stage it is possible to take enforcement action.

Finally, whatever your circumstances, we would always recommend you obtain legal advice early on so that you fully understand your options. Knowing where you stand from a legal perspective offers individuals both peace of mind so they know the next steps involved and how they can best move things forward.

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