It is a fundamental principle that, when separating married couples are engaged in settling financial matters between them, whether by negotiation, mediation, collaborative family law, family arbitration or where there are court proceedings, they have an obligation to make a full and frank disclosure of all material facts, documents and other information which are relevant to the financial issues between them.
There are various circumstances under which separating couples have to confirm their financial disclosure pursuant to a “statement of truth”. This is a statement which confirms that the contents of the financial disclosure is true and complete. Signing a statement of truth carries with it the same responsibility as giving evidence to a court under oath. Accordingly, if disclosure given pursuant to a statement of truth is not true and complete, it is possible that a person may be in contempt of court which may be punishable by committal to prison or a fine.
In addition, where there has been a material non-disclosure which has resulted in the court making a financial order, whether after a court hearing or by consent, it may be possible for the person who is prejudiced by that non-disclosure to apply to the court to set aside the previous order and to replace it with a different order taking into account the information which was not disclosed. In such a case, the person who has not made full and frank financial disclosure may have to pay the legal costs of a successful applicant.
The duty of financial disclosure is ongoing until a final order has been made, and includes the duty to disclose any material changes after initial disclosure has been given, so that, if circumstances change, the other person must be notified.
The obligation to give full and frank financial disclosure is balanced by an implied undertaking by both parties to the court to keep confidential all information and documents disclosed within family proceedings. This means that documents disclosed in financial proceedings should not be disclosed to anyone else, without the permission of the court, other than the solicitor advising a party in relation to a case.
All solicitors are officers of the court which means that they have a duty to ensure that a court is not misled. Accordingly, if a solicitor becomes aware that a client has not disclosed all relevant financial circumstances he or she must advise their client to inform the court and the other side of those circumstances and, if their client declines to do so, must cease to act for that client.
We have an experienced team of family lawyers who are able to advise and assist you on the best possible approach to take – contact Fisher Jones Greenwood by calling 01206 700113 or email [email protected]