Divorce and Financial Disclosure

Irrespective of whether your financial claims on divorce are being resolved in the court process, or in an out of court process such as mediation, arbitration, or voluntary negotiations (e.g. round-table meetings, whether virtual or otherwise), some degree of financial disclosure will be required.

What is Form E disclosure? In court proceedings, the court automatically orders that both parties carry out financial disclosure by completing a Form E and exchanging this with the other on a particular date. This is a link to the form.  A number of financial documents have to be attached to a Form E, such as bank and mortgage statements. Form E equivalent disclosure is usually exchanged between parties even where there are no formal court proceedings.

The important things to know about the disclosure process are as follows:

• Disclosure has to be full and frank, and the duty of disclosure does not end until a final order has been made. This means that regular updates to the Form E documents will be required throughout the process. If there are any significant changes to your financial situation, you should volunteer this information to avoid potential difficulties later on;
• There are ways to limit your legal costs in the disclosure process. A comprehensively prepared Form E can minimise the number of further disclosure requests, and the time and legal costs you will spend answering these.  If you gather your financial disclosure as carefully as you can, this will minimise the time (and costs) your lawyer has to spend finalising the Form E and asking you for more information;
• You are able to ask questions about each other’s financial disclosure and/or seek further documentation as long as it helps you to understand their position. A Judge will consider the reasonableness of requests for further disclosure, usually drafted in documents called a Questionnaire. If a Judge agrees that the requests are reasonable and proportionate, he/she will order that you provide formal responses. “Fishing Expeditions” which seek further information in the hope that it might reveal some undisclosed assets or income purely based on suspicion will not be allowed;
• Systematic failure to provide adequate disclosure may cause a Judge to find you to be in contempt of court, which is punishable by a fine and/or imprisonment. However, cases of imprisonment for non-disclosure are extremely rare.  In an out of court process, such as mediation, a dispute about disclosure has the potential to stall the process altogether and may necessitate that court proceedings are issued to resolve i) the disclosure dispute, and ii) the financial claims more generally; and
• The other party has a right to privacy over their own documents. Do not be tempted to help yourself to the other party’s private financial disclosure.  Your lawyer will not be able to use documents obtained covertly, and you may find yourself having committed a number of offences.  This has the potential to damage your credibility in the process.

If you have concerns about the level of disclosure that you are likely to have to provide in an anticipated divorce, please get in touch and we will be happy to talk you through this.

Amy Scollan: amy.scollan@hunterslaw.com Tel: 07778858670