OnePoll revealed in a recent survey, commissioned for the Post Office, that 1 in 6 people in Britain have a bank account, kept secret from their partner and of those surveyed, 1 in 20 had an account with more than £10,000.00 in it. When asked the reason for the secrecy, reasons given included:
- They think their income is none of their partner’s business and so keep it separate and away.
- Others keep it hidden in case the relationship does not work out.
- Others indicated they kept their savings a secret, otherwise they feared their partner would spend them!
When a husband and wife separate, and seek advise, we need information on all the assets of the marriage. If the party’s cannot agree a financial settlement, then it is necessary to issue Divorce Proceedings. Under the current procedural rules framework, formal disclosure begins with a Form E. This is a 28 page form which both parties complete. The front of the form contains the following warning.
“You have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances. A failure to give full and accurate disclosure may result in any order the court makes being set aside. If you are found to have been deliberately untruthful, criminal proceedings for perjury may be taken against you”
The Form E is then sworn on oath and the husband or wife confirms “that the information given above is a full, frank, clear and accurate disclosure of my financial and other relevant circumstances”.
We therefore advise clients of their duty of full and frank disclosure but what does this mean in practical terms ? As is often the case in matrimonial cases, the answer depends upon the circumstances of the case but it is essential that all relevant financial information is disclosed. This would, however, with absolute certainty include the “secret” accounts identified above.
So what if a party does not disclose this account? They face 2 risks in reality. The first, is that any financial settlement reached can be set aside and there are a number of grounds upon which this can be done, most relevant to this article are non-disclosure of some essential matter and/or fraud or misrepresentation.
This would therefore cover those cases when people have not fully disclosed all of their assets. It is right to say in cases I have handled where this has happened, the courts are keen to penalise the untruthful party by cost consequences, as well as redistributing the assets.
However, the Form E also contains a warning that criminal proceedings can be brought for perjury. Perjury carries a custodial sentence and it is right to say that the courts often treat breach of such disclosure obligations very seriously.
The message therefore, must be that it is vital in each and every case to give a full and frank disclosure. Representations can be made on behalf of the party owning the account as to why all or part should be excluded form the marital pot. It is, however, essential to come in to court proceedings giving full and frank disclosure as the consequences for failure to do so far outweigh the impact on settlement.
If you would like to discuss anything in respect of this article or any related issues please do not hesitate to get in touch with myself or one of my colleagues. I can be contacted on 0113 3363323 or by email on firstname.lastname@example.org .
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