Disclosure refresh – is all the information provided?

To assist in the consideration of negotiation and settlement, the principles of full and frank disclosure are essential to facilitating meaningful discussions. Deriving from common law principles, the duty of financial disclosure is the foundation of financial remedy proceedings. The general rule is that the court makes its decision on the basis of all available relevant evidence. To enable the court to do so, full and frank disclosure  is required. This is the process by which both parties exchange details of their financial positions. Both parties have a duty to the Court to give a clear and accurate account of  all their financial and other relevant circumstances – customarily set out in a Form E.

Judgment was recently handed down from the High Court in the matter of AP v ALP et al [2018] which provided a timely reminder of the issues surrounding disclosure and whether the opposing party and court can rely on the information provided by a litigant, as consideration is given to the matrimonial settlement. In his final judgment in the case, Mr Justice Moor noted that the wife had asserted that her husband had hidden assets or, if he has not done so, had recklessly dissipated them. In relation to the hiding of assets, it was for the wife to assert a positive case as to disputed facts. However, it was for the husband to then provide all the relevant information to make an assessment.

There have been a number of authorities over the years as to how the court should deal with cases involving alleged non-disclosure. In J v J [1955] P 215, Sachs J said at p227:

“…it is as well to state expressly something which underlies the procedure by which [parties] are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavit of documents or by evidence on oath… the obligation … is to be full, frank and clear in that disclosure. Any shortcomings … from the requisite standard can and normally should be visited at least by the court drawing inferences against the [party] on matters the subject of the shortcomings – insofar as such inferences can be properly drawn.”

An allegation of “reckless dissipation of assets” is widely considered an allegation of conduct as defined in section 25(2)(g) namely “conduct that it would in the opinion of the court be inequitable to disregard”. The court has made it clear that its view on this issue is such that for such conduct to be relevant, it has to be “gross and obvious”. For the court to “add-back” assets that have been spent or dissipated, the court has to be satisfied that there has been a “wanton dissipation of assets”. In Martin v Martin [1976] Fam 335, Cairns LJ said:

“A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably… Findings as to motivation are clearly very important… however… a spouse cannot take advantage of all the good characteristics of his or her partner whilst disavowing the bad characteristics. To put it colloquially, you have to take your spouse as you find him or her.”

Serving  Bedford and the surrounding northern villages, together with offices in central London, our lawyers can help you with all your divorce, matrimonial finance disputes, together with all other family law and separation matters.  If you want to speak to one of our specialist solicitors about disclosure and your  matrimonial finances, contact us on 01234 889777 or 0207 177 9777 and speak with us today.

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