Can I challenge our divorce proceedings?
My husband and I are going through divorce proceedings and I believe he has not disclosed assets honestly. What recourse do I have to challenge this and what are the potential risks?
Richard Kershaw, a partner in both the family and dispute resolution departments at Hunters Solicitors, says if there are court proceedings in existence then there will be a court-driven timetable which will compel disclosure of a significant amount of financial information within a specified time, usually through a document called a “Form E”.
If your spouse’s Form E does not contain everything you expect it to contain — for example, mention of pension or business interests — then a formal questionnaire can be raised or orders obtained at a court hearing. These can be used, for example, to obtain a business valuation.
More urgent protective steps can also be taken. For example, if your spouse’s Form E fails to disclose an asset which you know he or she has and you fear that steps are being taken to dispose of that asset to defeat your claim, emergency applications can be made to prevent this. In some circumstances, assets which have already been disposed of can even be clawed back.
However, these applications are expensive and must be proportionate to the relief sought. Costs are “live” and broadly follow the outcome, so if your application is successful it is likely that your spouse will be ordered to make a contribution towards your costs.
It is also possible, but rarely done, to ask the court to authorise a property search for certain documents.
Ultimately, when faced with a dishonest spouse the court can be invited to make inferences about that party’s assets, especially where an expensive lifestyle is incompatible with the assets which have been disclosed.
Above all, you must avoid taking a “self-help” route when faced with suspected non-disclosure by a spouse. Since 2010, the Family Courts have made clear that any attempt to obtain documents without permission may be a breach of that duty and may be penalised in costs or result in separate proceedings for damages.
The Family Courts take a dim view of non-disclosure, but beware prejudicing your own position by acting unlawfully. There are plenty of lawful protective steps which can be taken in such a situation.
Find the full article in the Financial Times, behind a paywall, here.
