Disclosure – obtaining evidence and the need for honesty

In seeking to settle the matrimonial finances, it is not uncommon for one party to have a greater familiarity and understanding of the family finances. Nevertheless, both parties are obliged to provide full and frank disclosure of their finances to the other, prior to any settlement reached. This is usually achieved by providing a completed Form E and supporting documentation.

The duty of disclosure is ongoing and also incorporates any changes to a party’s finances after initial disclosure is made to the other side.

Failing to provide full and frank disclosure can result in a range of penalties, from adverse inferences being drawn by the court against the non-discloser and costs, to imprisonment for contempt of court and the possibility of any final order that was made being set aside.

Disclosure generally covers the parties’ past twelve months of financial data, such as bank statements, credit card bills, loans, payslips and recent pension valuations. The duty also extends to a party’s finances in the reasonably foreseeable future. This may include a change in salary or impending bonus, an inheritance or settlement from an unrelated legal action, such as a personal injury claim or employment dispute.

It is not uncommon for one party in proceedings to suspect that the other is concealing or manipulating the disclosure, to paint a picture to the court that does not accurately reflect the financial landscape of the parties. This is often suspected of being carried out in an attempt to reduce the total of any capital settlement or avoid any maintenance payments in the future.

Historically, the courts provided latitude to individuals acquiring “self help” data and disclosure, providing that the individual took the documents without force, returned the originals and disclosed the existence of the copies to the other side.

However, following Imerman, the court has made it clear that this approach is not to be tolerated. The acquisition of “self help” data and disclosure is a potential breach of confidence that may amount to a criminal offence, such as theft, or breach the provisions of the Data Protection Act 1998.

The court has clarified that if a party has concerns about material non-disclosure before a final order is made, the correct approach is for that party to apply for an injunction preserving assets and a freezing order, before applying for an order.

Providing both parties comply with their obligations, progression of financial settlement can be conducted in an efficient and cost-effective manner. In circumstances that lead one party to believe that disclosure is not being conducted appropriate, a case can quickly escalate into complex and time consuming cost benefit exercise to consider the prospects of success for Imerman applications.

If you have concerns regarding your obligations to disclosure or fell that your ex-partner is not providing you with full and frank disclosure, contact us today on 01234 889777 to speak to one of our expert solicitors for assistance. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters.

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