WHAT'S THE POINT OF FULL FINANCIAL DISCLOSURE? Scotland Advice
BLM'S PRIVATE WEALTH PRACTICE GROUP ANSWERS
In this, the third of our #12DaysOfChristmas #12DaysOfFamilyLaw blog series, we ask...
WHAT'S THE POINT IN FULL FINANCIAL DISCLOSURE?
Full financial disclosure is essential in any divorce or dissolution of a civil partnership so that each party may assess their financial entitlement or liability. Whilst in England the court rules are geared towards early financial disclosure, the position in Scotland is quite different.
When a married couple separate in Scotland, one of the first issues that will need to be considered is what will happen with the finances.
The first step is to ascertain what the matrimonial property is. Matrimonial property is any property that has been acquired by either party in their sole names or in their joint names after the date of marriage that was still in existence at the date of separation. This will include, but is not limited to, any bank accounts, savings, ISAs, investments, shares and pensions. The only exceptions will be gifts from third parties and inheritances if they have remained in the same format they were received in.
What is full financial disclosure?
When a party approaches a solicitor following a matrimonial separation, the solicitor will ask about the matrimonial property. They will ask what was held in each spouse’s name and in joint names.
In the vast majority of cases, the parties will voluntarily exchange vouching showing the values of each asset as at the date of separation. This will allow the solicitor to see the extent of the matrimonial property and then advise on fair division. The starting point in Scotland is that matrimonial property should be shared equally, however there are various circumstances in which fair does not mean equal.
There may be a situation where one party does not want to provide vouching of their assets or there may be concerns that a party is seeking to hide assets from the other party. If this is the case, they may have to raise an action for divorce and seek an order for financial provision. In litigation there is an expectation that assets will be disclosed. Litigation is not a game and should be treated seriously.
When an action is raised in either the Court of Session or the Sheriff Court, a party can seek an order to be granted to allow them to contact various institutions to ask whether the other party has an account with them and for a note of the balance at a specified date.
The difficulty with such an order is that the party looking to find the assets has to serve the order on each institution individually. Therefore, if they do not know who their spouse’s accounts or assets are held with there can be a significant amount of work involved in tracing the assets.
If assets are identified which had not been voluntarily disclosed then the expenses of the recovery process can be sought against the party who failed to give full disclosure.
What does full financial disclosure consist of?
In disclosing assets, your solicitor will ask you to provide vouching (i.e. evidence) of each asset. For example, if you held a bank account at the date of separation you will need to provide a bank statement showing the balance at the date of separation. For pensions, a Cash Equivalent Transfer Value will need to be obtained from the pension provider. If the pension was started before the date of marriage the value will be apportioned to the period of the marriage.
If a court action is in progress, all of the vouching will be lodged with the court with an “Inventory of Productions”.
Your solicitor will need a complete picture of your and your spouse's financial circumstances to properly advise you as to what a fair and reasonable financial settlement may look like and to make an appropriate without prejudice offer to settle on your behalf. Whilst you may think you know what assets your spouse has and how much they are worth, it is always important to see evidence of this.
Providing full financial disclosure early on will also increase the chances of you and your spouse reaching an amicable solution out-of-court, thereby saving time, costs and the stress associated with court proceedings.
Failure to provide full financial disclosure is likely to result in your spouse or their solicitor requesting further information and documentation from you, which will inevitably increase costs and lengthen the process. If you fail to provide vouching in the course of litigation, or are obstructive about doing so, the court can award expenses against you.
As ever, we will be on hand to help you with all legal processes should you wish to instruct us to deal with a divorce or any other family law matter.
To read Day 1 in our 12 Days of Christmas series on self care tips during a divorce, click here.
To read Day 2 in our 12 Days of Christmas series on why you need a Will, click here.
Disclaimer: This content does not present a complete or comprehensive statement of law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.