I have had a few clients ask me recently about their spouse not fully declaring his/her assets and income. The high profile cases of Sharland and Gohil (where the husbands in those cases failed to fully disclosure) showed that such non disclosure can be met with serious consequences.
When you are involved in family law court proceedings (or preparing for court proceedings) on divorce, there is a duty for each spouse to provide full and open disclosure of all their assets, debts, pensions, and income from all sources. That is often done by completing a detailed form known as FORM E. There is no excuse, when using that form, that a spouse did not know what they were required to disclose.
After that completed form has been provided with documentation to support the information given, further questions can be raised seeking more documentation or information if a court considers it relevant. A court can order an expert to carry out a report and again there is a duty to fully disclose relevant matters to the expert. The duty to disclosure continues throughout the case so any changes must also be updated and disclosed.
Any settlement agreed or ordered by the court will be based on the information provided by each spouse in the disclosure process. So if that disclosure in incomplete, misleading or just plain wrong the settlement or court order will inevitably be wrong.
The Supreme Court, in both Sharland and Gohil, decided that there had been non disclosure of important facts and as a result the court orders in place should be set aside and the process started again. The court stressed that the duty of disclosure in family law cases is different to that in other civil cases. A spouse may, upon divorce, consent to an agreement being recorded in a court order. If the information disclosed by one or other party is wrong in any way then the consent of the other spouse is undermined.
Whether the final order is obtained by agreement (by consent) or imposed by the court following a contested hearing, the court still has a duty to consider whether the order is a fair outcome and as such that duty of the court cannot be fulfilled if the information disclosure is incorrect. Any setting aside of a court order is going to result in significant cost consequences for the spouse who has failed to properly disclosed.
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