What's the point of full financial disclosure? BLM's private wealth practice group answers
In the run up to Christmas/the festive period (i.e. there are precisely 12 working days to until the many people depart for their holidays), BLM's Private Wealth practice is sharing a series of blogs demystifying elements of the legal process impacting individuals and families seeking legal remedies. Here we'll share some of BLM's family & private wealth expertise.
In this, the first of our #12DaysOfChristmas #12DaysOfFamilyLaw blog series, partner and head of family law Grainne Fahy and solicitor, Yasmin Khan-Gunns ask...
WHAT'S THE POINT IN FULL FINANCIAL DISCLOSURE?
Hiding Christmas presents is one thing but hiding matrimonial assets or not providing full financial disclosure is another thing altogether. Whilst it may seem counter-intuitive to provide your spouse with full financial disclosure during divorce proceedings, it is a necessary and crucial step to obtaining a financial settlement.
What is full financial disclosure?
Full financial disclosure is where you and your spouse provide each other with all disclosure relating to your financial circumstances. This disclosure should be full, frank, clear and honest.
If you are in financial remedy proceedings, you will be required to provide full financial disclosure in a comprehensive document known as Form E. You and your spouse will then exchange Forms E on a set date. If you are not in financial remedy proceedings, your solicitor will advise you to complete and exchange Form E albeit voluntarily.
What does it consist of?
Form E requires you and your spouse to provide a vast array of details in respect of your financial circumstances, including details of the family home, any other property, bank accounts and investments, life insurance policies, valuable personal belongings, liabilities, business interests and directorships, pensions, employment, employment income, self-employment or partnership income and income from other sources such as rent or benefits.
Form E also requires you and your spouse to set out your weekly, monthly or annual income needs and your capital needs, such as whether you require a property to live in and how much this will cost.
Finally, Form E requires you and your spouse to provide a narrative of your respective financial situations, such as details of any significant changes to assets or income, details of the standard of living you enjoyed, contributions you made, your earning capacity, inheritance prospects, retirement plans and so forth.
In addition to all of the above, you and your spouse will need to gather and enclose with your Form E various documents, including:
- market appraisals or formal valuations of the family home and any other property dated within the last six months.
- up to date mortgage statements in respect of each property.
- 12 months’ statements for all bank, building society and National Savings accounts in your sole name or joint names with someone else.
- latest statements or valuations for all investments in your sole name or joint names with someone else.
- dividend counterfoils for any investments for the last 12 months.
- recent surrender valuations obtained for life insurance policies.
- recent valuations obtained of any item or collection of personal belongings worth more than £500.
- business accounts for the last two years and any other documents on which a valuation of your interest in any business can be based.
- recent valuation of pension rights.
- P60 for the last financial year.
- last three payslips.
- P11D for the last financial year if issued.
- last tax assessment or a letter from an accountant confirming the tax liability.
What is the point of it?
Your solicitor will need a complete picture of yours and your spouse's financial circumstances to properly advise you as to what a fair and appropriate financial settlement looks like, and to make an appropriate without prejudice offer to settle on your behalf. Whilst you may think you know what your spouse owns, your solicitor cannot rely on this and neither should you.
Providing full financial disclosure early on will also increase the chances of you and your spouse reaching an amicable solution outside of court, thereby saving time, costs and the stress associated with court proceedings.
If you are not already in financial remedy proceedings and if for whatever reason you do not wish to provide full financial disclosure, your spouse is likely to make an application to the court for a financial remedy order. The court will then automatically make an order requiring you and your spouse to exchange full financial disclosure on Forms E.
Once you are in financial remedy proceedings, a judge, just like a solicitor, will need a complete picture of yours and your spouses’ financial circumstances. A judge at the Financial Dispute Resolution Hearing (FDR) needs this information to provide you with an indication about the likely financial settlement a judge would impose on you if the case does not settle and proceeds on to a Final Hearing. A judge at the Final Hearing will then need this information to impose an appropriate financial order on you.
What happens if I don’t provide it?
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.
However, in more serious cases, failure to provide full financial disclosure could have the following repercussions:
- a judge may infer that you have something to hide and may, therefore, adjust the final order he or she makes to reflect this. This is likely to be to your detriment.
- your spouse’s solicitor may make an application to the court to have a final order set aside on the basis that after the order was made, it subsequently came to light that you have been dishonest or have failed to provide key financial information.
- you could be in contempt of court for not complying with a court order, which means that you could be issued with a fine, ordered to pay your spouse’s costs or committed to prison. A good example of this can be seen from the case of Young v Young , in which the court found that the husband had hidden assets worth approximately £45 million and as a result, he was restrained from leaving the jurisdiction and was imprisoned for 6 months.
- your behaviour could amount to litigation misconduct which could result in a judge making a costs order against you.
- you could be committing an offence under section 3 of the Fraud Act 2006.
Form E is a complex 26 page document that will ultimately be scrutinised by your spouse’s solicitor and the court. It is therefore very important that it is drafted with care and that you seek expert legal advice at the earliest opportunity.
A well drafted Form E can save considerable time and costs in the long run.