Ensuring full and frank disclosure is crucial in divorce proceedings. Concealing assets not only breaches this fundamental rule but can also lead to severe legal consequences. Honest disclosure protects parties from accusations of non-disclosure and subsequent set-aside applications. It also facilitates effective negotiation, increasing the likelihood of reaching a settlement outside of court or before a final hearing.
A financial agreement between divorcing parties, those undergoing a judicial separation, or dissolving a civil partnership cannot be finalised and sealed by the Court without complete disclosure. This process involves exchanging Form E - Financial Statements during Financial Remedy Proceedings, through mediation, or via voluntary disclosure, whether independently or through solicitors. For agreements reached outside of court, both parties must complete, sign, and exchange a Statement of Information (D81) form to obtain a Consent Order.
Failing to provide full and frank disclosure or misleading the Court can be considered contempt of court and lead to significant consequences. Both the party and their solicitor, who has a professional duty not to mislead the Court, must heed the words of Robert J in AB v CD: "it is not for a litigant to judge the ambit of the duty to disclose or the consequences of disclosure; any information which is relevant to outcome must be disclosed" (para [165]).
Under FPR r. 9.9A(1)(b)(ii), "set aside" means rescinding or varying a financial remedy order pursuant to section 31F(6) of the 1984 Act. The principal grounds include:
Following Mostyn J’s restatement in BT v CU [2021] EWFC 87, the grounds for challenging a financial remedy order are:
If successful, the Court will decide whether to exercise its discretion to set the order aside.
Applications are made under Part 18 using Form D11, supported by evidence outlining the application’s basis.
Unlike other family law matters where each party typically bears their own costs, Set-Aside applications may result in cost orders against the party at fault. Thus, the costs versus proportionality of such applications must be carefully considered.
Duncan Lewis’ Family and Child Care department is ranked by The Legal 500 and Chambers and Partners legal directories for our family and matrimonial work nationwide. The Family team is experience in assisting high net worth individuals in divorce matters with specialist divorce solicitors with expertise in domestic abuse, adoption, child abduction, prohibitive steps orders, specific issues orders, injunctions, spousal and child maintenance, properties, pensions and freezing injunctions. Our team includes solicitors who have achieved the Law Society’s Children Law and Family Law Advanced accreditations providing advocacy in all court proceedings, ensuring our clients receive a consistent and professional service as well as a high degree of continuity.
Solicitor and Supervisor Jaspreet Rai specialises in private divorce and matrimonial finance matters, with significant experience advising on the division of assets following the breakdown of marriage. Jaspreet advises in high net worth divorce matters, including those with an international element, and also assists clients with pensions and other assets.