Divorce marks the end of an emotional and personal relationship. But it also means splitting the marital finances in a fair and reasonable way.
This means taking account of the changed circumstances and having regard to the needs and obligations of each party. The only way to reach a legally watertight agreement on finances is for each spouse to lay all of his or her assets on the table so that an accurate assessment of what is available van be made.
Whether you reach a financial agreement by consent or a judge has to decide how to divide the assets, you will only obtain a final court order after you have made full and frank financial disclosure.
Failure to disclose assets may lead to a settlement being reopened at any time in the future.
WHAT DO I NEED TO DISCLOSE?
Form E is the document both parties must complete if the family court is in any way involved in the financial aspects of your divorce. Even if you hope to reach a settlement privately, Form E is a useful place to start. The type of information usually required includes:
- Mortgage statements
- 12 months of bank statements
- Details of pensions
- Life insurance policy details
- Valuations of properties
- Wage slips and evidence of all income sources
- 2 or 3 years of accounts if self-employed
Some people treat Form E literally as a tick-box, form-filling exercise. They shouldn’t. It is crucial to put as much detail in your responses as possible.
This is your opportunity to give as accurate a picture of your finances as possible. You should explain any peculiar transfers in or out of your bank accounts. If you work, indicate the level of your job security. Is there a possibility of redundancy for example?
AM I LEGALLY OBLIGED TO PROVIDE THE FINANCIAL INFORMATION?
This depends on the nature of your divorce. It is perfectly possible to agree a financial settlement on the basis of limited disclosure or no disclosure at all. But in the vast majority of cases this is inadvisable.
Once the court approves your settlement (in a consent order) it can be more difficult to revisit the financial settlement. Also, if you proceed with limited disclosure it is impossible for your solicitor to advise you with any precision of your legal entitlement or obligation.
WHAT IS THE PROCESS FOR DISCLOSURE?
If you are hoping to agree a financial settlement without applying to the court you can voluntarily disclose your financial information and negotiate an agreement with your spouse. It is advisable to speak to a lawyer before reaching any agreement. If you do reach agreement you will still have to ask the court to issue a consent order. This gives the agreement – which has been voluntarily agreed – the force of law.
Many couples are unable to reach agreement. If this is the case one party will have to apply to the court for a financial order by completing ‘Form A’.
There is a process for dealing with the financial aspect of your divorce:
- Each side completes Form E (see above);
- Form E is exchanged well in advance of the first court hearing;
- Parties can raise questions informally about the nature of the information disclosed on Form E;
- At the first court hearing the court gives directions for further disclosure;
- Once this has taken place both parties attend a Financial Dispute Resolution appointment; and
- If no agreement is reached a final hearing is set when the court will make its final decision.
Within this process there are multiple opportunities for negotiation and finding agreement. The vast majority of financial cases do settle ahead of the final hearing.
WHAT HAPPENS IF ONE PARTY HIDES ASSETS
As you can see there is an opportunity to question the extent of disclosure if you do not believe it has been comprehensive.
But failure to be full and frank in disclosing assets is risky – and could even be classified as fraud.
If non-disclosure is discovered in the future there is nothing to prevent an ex-spouse asking the court t reopen the settlement.
This could be many years after your divorce. This could lead to closer scrutiny by the court and significant penalties in the form of court costs and legal fees.
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