"I know he's got more than he's saying" and "I've got these documents about his money let me show you..."
I often hear these comments when dealing with the disclosure of assets as part of the financial settlement in a divorce. Whether you are a husband or a wife (although usually it is a wife) in such a position, what can you do? Recent case law has made it unwise to proceed without seeking professional advice.
Within the financial proceedings both the husband and the wife are required to provide full and frank disclosure of their financial situation. Once exchanged, the financial information and documentation is looked at and any missing information can then be requested. Clues as to hidden assets can often be located from other sources.
If an erstwhile hidden asset is disclosed but the disclosing spouse resists providing evidence as to its value, the Court may draw adverse inferences about its real value and the possibility of other hidden assets which may be reflected in the size of the final award.
If, during your marriage, you had free access to your spouse's assets and know details, for example of bank accounts, you can provide this information to the Court without supporting documentary evidence. Such a situation might arise if you have dealt with or been responsible for the family's finances throughout the course of the marriage. You would have to explain how you have such knowledge and ask the Court to believe your evidence as to the assets and their value.
However, producing confidential information or documents about your spouse's finances, is a difficult area and could put you in breach of criminal and data protection law if you act without seeking professional advice first. The English High Court case of Tchenquiz-Imerman v Imerman [2011] has confirmed that it is unlawful to obtain and copy documents relating to your spouse's finances. The safe or filing cabinet full of documents detailing bank accounts and investment portfolios is out of bounds.
Any document you lay your hands on, whether in hard copy or electronic form, dealing with your spouse's finances must be returned to them. Your lawyer cannot look at the documents and must forward them in a sealed envelope to either your spouse's solicitor or if they are representing themselves the documents must be sealed and held waiting for a Court order requiring the documents to be forwarded to an independent lawyer. That lawyer will look at the documents and identify what should be disclosed. All lawyers have a duty to the Court to ensure that all relevant information is disclosed. If you tell your lawyer the contents of the documents prior to formal disclosure, your lawyer may be put in a position where they may not be able to continue to act for you.
If you take your spouse's financial documents without their approval your spouse may report the matter to the Police and the Data Protection Commissioner who will then decide whether to take any action against you. It may be relevant if you can show your spouse had not disclosed the information in an attempt to mislead the Family Court. If you had always dealt with the family finances and had access to the documentation it would always be open for you to argue that the documents were yours to access in any event.
If the reason you have come by documents that were otherwise not available to you is that you feared your spouse was about to remove assets from the jurisdiction, you can still rely on them however you have to be frank about how you came by the information. This might leave you at risk of criminal proceedings. You would have to decide whether or not the risk was worth it.
Even if you suspect your spouse has got away with not fully disclosing their means by the end of the financial settlement proceedings all is not lost. If an order has been made and it later becomes clear that either spouse is leading a lifestyle or makes public financial details that make it apparent the assets disclosed to the Court were not the full and frank then an application can be made to return the matter to Court to vary the financial settlement.
In reaching a financial settlement in a divorce the focus of the family court will be to provide a settlement that is fair and just in all the circumstances. How this can occur when one party is being less than honest in their disclosure will trouble the Court but it is clear that it is no longer an option for one party to go rooting around for financial documents belonging to their spouse and then seek to rely on them without there being potential criminal and civil consequences. So; if you suspect 'he or she's got more than they are saying' or if you find yourself on the receiving end of such allegations, you should seek professional advice before taking any further steps.
First published in Jersey Life, May 2014
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
