Financial disclosure is the process whereby each spouse provides detailed information regarding their assets and debts, with documentary evidence of the same. This process is essential to ensure that the settlement is fair and reasonable.
Context: Financial disclosure
Once the decision to divorce is made, it is important to consider how the financial assets of the marriage are to be divided.
Financial agreements upon divorce can be reached outside of court, through negotiating with your spouse directly, through solicitors, or via alternative dispute resolution processes such as mediation. If an agreement is reached, this should be formally recorded in a Consent Order, which should be approved by the court to ensure enforceability. For the Consent Order to be approved, the court must be satisfied that the agreement is one that is fair and reasonable to each person.
However, for a variety of reasons, reaching an agreement is not always possible. In those circumstances, it is necessary to apply to the court to begin court proceedings so that a judge can decide how the assets will be divided. In order to divide the “matrimonial pot” of finances, it is imperative to understand the size and nature of that pot. This is where financial disclosure comes into play.
What does financial disclosure entail?
For each spouse to have a true understanding of the matrimonial pot, and thus understand what they are entitled to, it is advisable that each provides full and frank disclosure of their financial resources, assets and liabilities, with documents to evidence said disclosure. Indeed, this is a stringent requirement in court proceedings to ensure the settlement is fair and reasonable.
Each spouse then exchanges their financial disclosure with the other (usually simultaneously). This provides the opportunity for each party to review the documentation and seek further disclosure, clarification, or explanation. Such a review should be painstakingly carried out and it is strongly advisable to seek the assistance of a solicitor in doing so.
In court proceedings, financial disclosure must be provided by way of completing and exchanging Forms E. It should be noted that where parties seek to reach settlement outside of court proceedings, Forms E are also, typically, the preferred means of parties exchanging financial disclosure.
A Form E is easily accessed and downloaded from: Form E Financial statement (publishing.service.gov.uk)
A Form E requests information in respect of the following:
- Property valuations
- Mortgage statements
- Bank account statements
- Savings, investments, shares or other such policy statements
- Business valuations
- Pension statements
- Income and housing needs
Supporting documents must be provided, i.e., mortgage statements, 12 months of statements for each bank account, and evidence of incomes sources such as payslips or business accounts.
The documents required will vary according to your financial circumstances, i.e., whether you are self-employed, a beneficiary of a trust, a shareholder, or a Partner in a business partnership.
Following the exchange of financial disclosure, it may be that specific assets, resources or needs are disputed by one or either party. Therefore, the parties may need to instruct an expert (usually a single joint expert, although each party can instruct their own separately) who will provide a valuation. This may be an accountant providing a business valuation or tax liability report, an actuary providing an assessment of a pension value, or a surveyor providing a property valuation.
Can you be forced to disclose assets?
If you reach a settlement entirely outside of court, disclosure is very much predicated on trust and the goodwill of the other. Therefore, there is little you can do to ensure the other is not hiding assets and so that is why you take a risk if agreeing upon the division of such matrimonial assets on a voluntary basis.
Whatever the settlement reached, it should be drawn up into a Consent Order so it is a legally enforceable document. The court will review the information which the parties have disclosed to each other in order to ensure the agreement reached is fair and reasonable. If, following the making of a Consent Order, it transpires that a party failed to disclose assets, this may result in the court, on application by the other party, making an order to set aside or vary the order. The non-disclosing party would be at risk of paying the other party’s legal costs of making that application.
In court proceedings, disclosure must be full and frank. If you have reason to believe that your spouse is hiding assets, you can apply to the court to make an order for disclosure to be made in proceedings. Your spouse’s non-disclosure may result in the court drawing adverse inferences against them, ordering them to pay your costs resulting from such obstruction of disclosure, or even finding them in contempt of court. Similarly to a Consent Order, an order made by the court at the conclusion of financial remedy proceedings can be set aside or varied, even years later, if it is discovered that there had been material non-disclosure.
If you would like further information on financial disclosure or advice regarding your divorce or finances, please contact us on firstname.lastname@example.org