Family Solicitors

What can I do if my ex partner is hiding money? This is a question frequently asked of family solicitors. There is a very real fear from many parties to divorce, particularly those in a weaker financial position, that the other party is hiding a large proportion of their assets and failing to disclose this to the court.

The Family Procedure Rules 2010 make it clear that there is a an ongoing obligation throughout all court proceedings that all parties make full and frank disclosure of all material facts, documents and other information relevant to the issues being ruled upon.
Prior to the cases of Imerman v Imerman; Sharland v Sharland and Gohil v Gohil, the approach to the issue of disclosure was more lenient; a person could copy documents provided they were returned within a short space of time and no force or deception had been used to obtain the papers.

The leading case in this matter is Imerman v Imerman. In this case the wife’s brother worked with the husband and had access to the husband’s computer systems. The brother accessed the husband’s server and obtained the husband’s personal information. The brother provided these to the wife’s solicitor who sought to use them in the legal proceedings.

The judge, in the first instance, ordered the return of all of the documents disclosed to the wife’s solicitor to the husband immediately to allow him to check for privileged information relating to his business. He would then have to return these papers to the wife’s solicitors. However, the husband appealed this decision and the Court of Appeal ordered that the wife’s solicitors had to return all of the papers and that the husband’s solicitors only needed to remind him of his duty of ongoing disclosure. This set precedent of ruling whereby original documents can only be taken and copied upon agreement.

In Sharland v Sharland (2015) and Gohil v Gohil (2015) it was found that those who misrepresented their finances to the Family Court will have the burden of proving that the court would have made the same order had the information originally been disclosed. The court can draw negative inferences from parties who fail to disclose and can make orders accordingly to take this into account. To simplify, if it becomes clear to the court that a party has failed to disclose information, they can assume that if this information had been originally available it would have affected proceedings. The courts therefore obtain the right to take in account this missing information and adjust their decision accordingly.
Therefore what must you do if you have unlawfully obtained documents regarding the partners’ disclosure?

The duty of disclosure only arises upon exchange of financial information as directed by the court before the first hearing (usually on a Form E).

If you provide your solicitor with documents belonging to your partner, your solicitor should not read them and must return them immediately to the other parties’ solicitor.

The solicitor for the party receiving the information has a duty to the court and must read them and provide any that are relevant to the current proceedings and part of that duty of ongoing disclosure.

Most importantly you should bear in mind that you do not have to pretend that you have not seen these documents and you can refer to them in evidence BUT you must be clear with the court how these papers were obtained, for example, where they left on the kitchen worktop or did you force open a drawer.

In summary, you have to be extremely careful about what documents you obtain. Original documents should not be taken or copied without agreement, although it may be acceptable for you to take mental and even written notes of the key points although the use of this information cannot be guaranteed. There are remedies that are available such as searching orders or freezing orders to obtain any information you feel has not been disclosed, but this will be a balancing exercise for the court. A party must explain clearly why they require any of these orders and it cannot be a mere feeling that documents are being hidden or an attempt to force them to prove that they do not have other bank account or shareholdings.

Paul Nuttall, the author, is a Solicitor in the Duncan Lewis Family & Childcare Department. He regularly deals with individuals going through divorce who have to simultaneously arrange their financial separation and/or child arrangements. He regularly represents clients who are struggling to come to an agreement over child contact and residence.

Duncan Lewis Family & Child Care Solicitors

Headed by 18 Director Solicitors, and boasting over 40 Law Society Family & Childcare Panel Specialists, the Duncan Lewis Family & Childcare department are specialists in all aspects of family and private/public children law matters from offices across London and throughout the UK. Recognised by Legal 500 2016 as a leading family practice, the team holds a niche practice in representing victims of domestic abuse and is significantly experienced in complex financial matrimonial matters (ancillary relief) relating to the breakdown of a marriage/relationship.

With a broad practice representing parents, family members and children through their children’s guardian in all children public law proceedings and conducting cases on behalf of the official solicitor, the Duncan Lewis’ Family & Childcare team are also specialists in high profile international child abduction cases, with an extensive practice in inherent jurisdiction/forum disputes, international relocation cases and wardship proceedings for the return of children.

Duncan Lewis is one of only a small number of firms throughout the UK that are on the Lord Chancellor’s International Child Abduction & Contact Panel (ICACU), which is responsible for administering Hague Convention (Child Abduction) proceedings work in England. Since 2013, Duncan Lewis has an established Islamic & Sharia Law team which specialises in Islamic Divorce, Islamic Financial Settlement & Mahr Claims under English Law.

If you would like to talk to one of our expert solicitors on a family or child care matter please call 0333 772 0409