Brigid O’Malley – Solicitor in our Family department – discusses non-disclosure in financial remedy proceedings

Brigid O'Malley, Family Law Solicitor at Davis Blank Furniss

If you or your spouse have made an application for a Financial Order through the family Courts you are both under a duty to the Court to provide full and frank financial disclosure throughout the proceedings. The obligation to provide full and frank disclosure is ongoing and does not stop after you have completed and sent your Form E (financial statement) to the Court. If there are significant changes to your financial position during the proceedings or you discover financial information that you had misplaced or simply forgotten, then you must inform the Court and the other party.

The duty is ongoing to help the Court achieve the overriding objective.

The idea of continually providing your spouse with updated financial information that may lead to them claiming a higher financial settlement may be hard to swallow, but your duty is to the Court and there can be significant consequences of failing to provide full and frank financial disclosure.

Costs Orders

Generally in financial proceedings on divorce each party bears their own costs. However, the Court may make Costs Orders against another party, if appropriate, because of their conduct during the proceedings. Failing to disclose financial information which is material to the case may be considered misconduct by the Court and therefore, a Costs Order could be made. Furthermore, if one party fails to disclose information, leading the other party to incur costs to obtain that information then a Costs Order can be made.

Adverse Inferences

The Court can draw adverse inferences against a party where they have failed to disclose financial information; the Court can conclude after hearing evidence, that a party does have assets they have failed to disclose and then make an Order, taking such assets into account. However, adverse inferences must be properly drawn and it would be wrong of the court to draw adverse inference that a party has assets which, on an assessment of the evidence, the Court is satisfied he/she has not got.

Contempt of Court

In very serious cases the Court can find a party in Contempt of Court for failing to disclose assets, as happened in the case of Young v Young.  In this case the husband was given a six month custodial sentence after being found in contempt of Court for failing to disclose important financial information – a stark warning to all involved in financial remedy proceedings!

Setting aside an existing financial order

If a party is found to have failed to disclose financial information that could have made a fundamental difference to the financial order made, then an Order could be set aside following the conclusion of the proceedings.

The advice is simple.  Ensure that you comply with your duty to the Court to provide full and frank disclosure throughout the proceedings. Failing to do so may have dire consequences for you personally, on the final settlement and also to legal costs!

If you need further advice about financial remedy proceedings, please contact a member of the Family Team on 0161 832 3304.

For more information about Brigid and her work, please click HERE.

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