Do I have to disclose my financial information as part of my divorce?

If you’re separated and will be dissolving your marriage or civil partnership by way of divorce or dissolution, it’s also advisable to deal with financial matters. While you can reach a financial settlement between you and your partner directly, it’ll only be legally binding and become a financial order if it’s approved by a judge within divorce or dissolution proceedings.

Here, divorce law expert Amy Harris explains when and why financial information needs to be disclosed and the risks that come with non-disclosure.

Obtaining a financial order

To obtain a financial order, you’ll need to provide the court and your ex-partner with some personal and financial information on a statement of information form (Form D81). This is a summary of your family’s circumstances and helps the Judge to understand whether the agreement you’ve reached is fair. 

This means that to obtain a financial order — something that’s strongly advisable for most people — you’ll need to (at the very least) disclose the headline financial figures such as the balances of your bank accounts and your income.

Before you’re ready to ask the court to make a financial order, you’ll need to reach an agreement with your former partner (if possible). An agreement can be reached directly with your partner or via solicitors, mediation, arbitration or court proceedings.

The benefits of full disclosure

If neither of you have made an application to court to resolve the financial side of your separation, you’re not required to provide your partner with full disclosure. Full disclosure would typically involve completion of the court form (Form E, which can also be used outside of court proceedings) together with supporting documentation such as bank statements and payslips.

However, full disclosure is usually advisable because it will help you, your partner and your family law solicitor to determine whether the agreement you’ve reached (or wish to propose) is fair. Disclosure also helps to minimise the risk of any agreement you reach by enabling the creation of a legally-binding financial order. 

The risks of non-disclosure

Financial orders can be set aside in the future as a result of non-disclosure. Your former partner could make an application to set aside an agreement if they say that you didn’t disclose a particular asset to them that renders the agreement reached unfair. The exchange of financial disclosure therefore proves that you and your partner reached an agreement with full knowledge of all the facts involved.

While you can reach an agreement without providing full disclosure, this is an important decision to make. You may wish to discuss the risks this brings with your solicitor. There’s also a risk that if you don’t provide disclosure voluntarily or if an agreement can’t be reached, an application may be made to court by your partner. If a court orders you to provide financial disclosure, you must comply or risk serious consequences. 

Quick case example — Brown v Brown

In the recently reported case of Brown v Brown before District Judge Dodsworth in the Family Court at Newcastle, Mr Brown had failed to provide a Form E or cash equivalent transfer value (CETV) of his pension. Mr Brown was found to be in contempt of court — and ultimately, a warrant was issued for his arrest. 

At this hearing, DJ Dodsworth said that it was the court’s role to assess the seriousness of Mr Brown’s conduct and find an appropriate punishment. The court was conscious that Mr Brown hadn’t engaged with the court during the process. Since he could have chosen to do so or provide the disclosure, he had therefore been in breach of various orders. DJ Dodsworth therefore found that Mr Brown had taken no steps to mitigate his contempt by trying to resolve matters.

DJ Dodsworth found that Mr Brown’s contempt — coupled with his conduct — was so serious that a custodial sentence was necessary. Mr Brown was sentenced to 19 days’ imprisonment and ordered to pay his wife’s costs that were associated with her application. 

This case highlights how court proceedings contain a duty of full and frank disclosure and there can ultimately be criminal sanctions for non-compliance. If you’re in any doubt as to what information should be disclosed, you may wish to take specialist legal advice.

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