Can I Refuse Financial Disclosure?
Whilst many divorce settlements can be resolved amicably, some can be more challenging, particularly when it comes to the financial disclosure needed to reach a fair financial settlement. Many people are concerned their ex will refuse financial disclosure or will not be honest. Others may not want to divulge their finances and earnings and will refuse to make a financial disclosure.
In our Ultimate Guide to Financial Disclosure, we take you through what needs to be valued, and why a full disclosure protects you against any future claims.
Whichever one of the 11 ways to reach an agreement on finances you use, you need to know what there is in the ‘family pot’, in order to reach a fair settlement.
If you cannot reach an agreement and end up going to court, in order to decide how family assets should be shared, the court requires both parties to complete a standard disclosure form, referred to as a Form E, and to provide supporting paperwork. This includes company accounts if you own a business, independent valuations for any properties and 12 months’ bank statements for each bank or savings account you hold.
Alongside a full financial disclosure, you will also need to include other information regarding your personal circumstances and future plans. The information requested can see unnecessary and overwhelming, but it is all required to ensure the integrity of your legally binding consent order. You don’t want a missed savings account to be held against you in, say, five years’ time after your divorce and start the whole process again!
Both parties in a divorce have a duty to provide a full and frank financial disclosure.
Ali Carter, Managing Director @Mediate UK
Providing full and frank financial disclosure may include:
- 12 months’ of bank statement
- 3 months’ of payslips
- Details of any property, savings and investments
- Estimated value of any business interests
- Evidence of any liabilities
- Interest in trusts
- Most recent P60 or tax return
- Pension valuations
- Business valuation
- Your income
- Your liabilities
Can I Refuse Financial Disclosure?
It is not recommended that you refuse to disclose standard financial information as this will remove many of the 11 options to reach an agreement and will mean the other party is likely to have to file for a financial order through the courts.
The process of going to court to get a final decision is not a quick one and if you are represented by a solicitor or barrister, they will quote you upwards of £20,000 plus VAT for the three hearing process. That process takes on average 11.5 months in the UK.
Let’s look at the implications of not making a full and frank financial disclosure:
- It is likely your case will end up at court
- You will incur comprehensive legal costs if you are represented at court
- If you refuse financial disclosure or other information that the court requests, they can apportion the other side’s legal costs to you
- The court can also take your behaviour into consideration when making the overall financial award. You can end up with less, even if that does not meet your future needs.
- You could be in contempt of court and be fined or even end up in jail
- If it is subsequently shown you were dishonest on a disclosure, your consent order can be set aside – even many years later – and you will have to start the whole process again. With a new, up to date and accurate financial disclosure.
If the court finds that you failed to provide a full and frank financial disclosure, it will likely have a less than favourable perception of you, which could result in a financial court order that you are unhappy with alongside an order that you are liable to pay your spouse’s costs.
Ali Carter, Managing Director @Mediate UK
In extreme cases, the court may decide to impose a fine or term of imprisonment for failure to disclose financial information or giving false information.
For recent case law on how a court takes into account conduct on financial disclosure and hiding assets see Rothchild v De Souza . The husband in this case frustrated the process and increased the costs of the other party unreasonably by refusing to provide a full financial disclosure and he also transferred assets out of his name.
In this ruling, the judge concluded that whilst his judgement did not meet the future need of the husband, his conduct had been so poor that to do so would result in an unfair judgement. Conduct in reaching in agreement will even pip future needs under family law. It is why it is so important to act reasonably and responsibly in disclosing the assets that you have to each other.
Spouse Refusing Financial Disclosure
If you believe that your former partner has failed to provide a full financial disclosure, then you will be given the opportunity during family mediation, or solicitor-led negotiation, or ultimately through the court process to ask questions and request extra information and paperwork proofs.
If you believe that your spouse has not or will not disclose all assets, or has not been honest about their finances, we recommend you request the disclosure through family mediation is conducted on a Form E, which is signed with a statement of truth. You can then use a fixed fee legal advice package to discuss what has been disclosed and what questions you need to ask.
In family mediation for financial matters, the first step in the 4-step process is to disclose and ultimately agree the full financial picture. This is conducted in a safe and regulated environment during the mediation session. It protects the integrity of the process and allows both parties to provide, question, check, and ultimately agree the financial disclosure.
Common Questions on Disclosure
Do we have to do a full financial disclosure?
You do not have to do a full financial disclosure to reach a final settlement. But it is recommended that you both do one.
The minimum required is the information on a Form D81, which is the value of any :
If a high-level disclosure is agreed through family mediation, we will ask you to sign a waiver to cover the fact that the disclosure has not been broken down into individual assets, leaving it potentially open to challenge at a later date. Read more about Form D81 here.
How can financial disclosure be prevented?
If you both have an agreement on your finances, you can put it into action and not do a financial disclosure. But to have any agreement legally binding or to get a clean break consent order, preventing a claim against you in the future, even many years after the divorce, you would need to do a financial disclosure.
What happens if my spouse refuses to complete form E?
It is likely you will end up at court, where the court will order them to complete a Form E. Failure to do so could result in an order being made that is worse than they would have got had they made a full financial disclosure; they can incur additional legal costs themselves and also be required to pay your legal fees. Ultimately they could be in contempt of court and be fined or imprisoned.
Is it best to make a full financial disclosure when requested.
Yes it is best to make a full financial disclosure. There is very little to be gained from trying to frustrate or delay the process. You will likely end up at court, where you will have to do a financial disclosure and you will probably incur far more costs.
How far back does a financial disclosure go?
Bank statements usually go back for 12 months, but there may be situations where you need to go back for further proof. Each situation is decided on its merits, but it would be very rare to request bank statements for longer than 3 years – and only then if there is very good reason. Remember, who contributed or paid for what during a marriage is very rarely taken into account when deciding the overall financial settlement.
Can a financial disclosure be agreed in mediation?
Absolutely, yes. And even if you don’t go on to reach a full agreement in mediation, just agreeing your financial disclosure will save you thousands of pounds, as opposed to doing the same exercise through solicitors. And remember, 90% of Mediate UK clients go on to reach an agreement through mediation.
My ex told me they won’t do a financial disclosure and/or I know they will be dishonest. Can I just go straight to court?
You will need to at least consider family mediation by way of a MIAM before you can go to court. And your ex should be given a chance to produce a full financial disclosure as part of the mediation process, even if they have said something different to you
Our advice in such situations is to start the family mediation process and see what information, if any, is provided. Doing so will show you the court you have tried to act reasonably and responsibly. It also gives the other party a chance to make a disclosure and you can see what has been produced and raise questions on it in a safe environment. See our blog “Will it look bad if I refuse family mediation” for more on this area.
Where can I find out more information?
Mediate UK are a multi award-winning family mediation service. We can help with fixed fee mediated and consent order packages (when you don’t have an agreement between you) or fixed fee facilitation and consent order packages (when you have an agreement in principal) – and our legal paperwork is always drafted by our highly experienced family law solicitors.