Regardless of whether you and your spouse are divorcing amicably, hiding assets (or a suspicion of this) will invariably be a source of contention between you. In this article, Sarah Speed and Anna Gregory consider whether assets can be hidden during divorce proceedings, and what steps can be taken if you are concerned that your ex might not make full disclosure.
What is Financial Disclosure?
Getting divorced is a legal process. If you wish to obtain a financial settlement on divorce, you will have a duty to provide your spouse and the court with your full, frank, and clear disclosure. This duty exists regardless of which form of dispute resolution you adopt e.g. mediation, solicitor correspondence, or court.
In order to comply with this duty of disclosure, you must provide complete and honest details of all your financial resources, including your income, capital and pensions. Furthermore, you must continue to update the information provided until an agreement is reached or a judge-made outcome is determined.
How Much Do I Have to Share?
During divorce, it is important to note that all your resources must be disclosed – even those that have been inherited or gifted or otherwise came from outside the marriage, or if it has already agreed with your spouse that they are not to be shared or redistributed on divorce.
What Happens If Your Ex Fails to Disclose Assets During Divorce?
Where you suspect that there has been a failure to disclose assets during a divorce, a disclosed asset has been attributed an undervalue, or the disclosure is otherwise unsatisfactory, it will be crucial to make thorough enquiries and seek further information with supporting documents.
- Undervaluing assets – this could be a car, a piece of art or any other asset which your ex discloses as worth less than its actual market value, thus reducing the pot of assets available for sharing. Valuation evidence will be critical, in the form of an online valuation or a bespoke valuation report.
- Fabricating debts – such as claiming that money is owed to a family member or friend and that consequently their financial needs are greater than they really are. Seeking a statement from the alleged creditor will be a good place to start.
- Transferring funds – you may believe that a party is temporarily “warehousing” money or parking assets with friends or family members in order to try and put them out of reach or frustrate your claims. Evidence of when the transfer was affected and the circumstances surrounding the transfer will be helpful in determining whether your spouse intends for the assets in question to be returned to them post-divorce.
Steps to Take If You Suspect Hidden Assets in Divorce
It is crucial not to start trying to negotiate terms of financial settlement until you are satisfied that the disclosure process has been satisfactorily completed, particularly if you suspect your former partner of dishonestly divesting themself of assets or where there has been a historic lack of financial transparency in your relationship.
Be warned, however, that taking matters into your own hands by seeking to access your ex’s financial documents or information, electronically or otherwise, is likely to end badly and could even be a criminal offence. Instead, carefully review what has been provided with your solicitor or accountant, paying particular regard to unusual activity such as multiple large transfers to an unknown account or an unrealistic valuation of an asset.
It may also be helpful to consider the following:
- Checking public documents such as those at the Land Registry or Companies House
- Reviewing social media for helpful comments or boasts as to personal wealth or lifestyle
- Reviewing the property market via Rightmove or Zoopla
- Proposing the joint instruction of a forensic accountant report on likely valuations
- Instructing a tracing agency
- Taking legal advice on: –
- applying for an ‘add back’ if your ex has depleted their savings through intentional or reckless spending in order to reduce the value of available funds for sharing; or
- applying for a third-party disclosure order to require a bank or legal owner of funds belonging to your ex to provide missing details; or
- applying for a search order or freezing order; or
- seeking an injunction to unravel a previous disposition to return an asset into the ownership of your ex, ready to be scrutinised and, if appropriate, transferred to you or shared between you.
How a Family Lawyer Can Help With Hidden Assets and Non-Disclosure
It will be key to inform a party who you suspect might be tempted to misrepresent their financial circumstances of the penalties for failing to provide full and frank disclosure, e.g. costs orders, or the court making adverse inferences. Early contact from a solicitor will hopefully encourage full transparency and avoid additional rounds of questions and disclosure which could in turn avoid delay and additional costs (see our article on the possible sanctions for not disclosing finances on divorce).
At Herrington Carmichael, our family team has considerable experience in analysing financial disclosure and identifying the red flags of unsatisfactory disclosure. If you would like assistance, please contact us.
