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Spilling the Beans – The Importance of Disclosure

Posted: 26-09-2016

I am experiencing much more often lately clients who do not like the idea of full and frank disclosure. They may feel it too expensive or unnecessary, or feel it an invasion of their privacy. If disclosure is refused or not provided, then the couple often opt for a DIY type settlement, which can be incorporated into a Consent Order. This will mean that the solicitors acting for the couple will not be able to give full advice upon the agreed settlement. Additionally, even with a DIY settlement agreement, the parties cannot oust the jurisdiction of the Court. The Judge must still approve the Consent Order, and in the event that it is not considered ‘fair’ in the eyes of the court the Consent Order may be refused.  Disclosure of the assets will still be required by the court on a form known as a Statement of Information even if agreement is reached.

Divorce is an important and difficult time in a person’s life, they only get one shot at getting a settlement right. It is something that the parties must be prepared to invest time and money in, just like any other milestone in their lives such as buying a house for example. It is important that they seek legal advice early, not sign any direct agreement with their spouse prior to seeing a solicitor, and consider what route of settling their finances will be the best for them.  The pressure of a direct agreement when they are not thinking straight is may not be best and solicitor negotiation, mediation, arbitration, collaborative law or even the option of court may be what is best. Factors to decide this will include: –

  • The total assets that the couple have;
  • Whether a good relationship is maintained between the parties;
  • Whether there is openness and trust between the parties regarding the finances; and
  • The affordability of the parties which may dictate which route is more suitable. For example, mediation is still available on legal aid for those with lower incomes.

Divorce is not one size fits all. Every case is different and thus the cost and complexities are different. Full and frank disclosure is a prerequisite before legal advice can be given on any settlement. It allows parties to negotiate with full knowledge of up to date valuations of the assets they have.

A very relevant point that was raised in a recent case AB v CD [2016] EWHC 10 (Fam) by Robert J is that it is not for the litigant in person to judge the ambit of the duty to disclose, nor the consequences of disclosure. Any information which is relevant to the outcome must be disclosed.

If you are considering a divorce, or perhaps have divorced not concluded a financial settlement, please do not hesitate to contact Sousa Law for tailored advice for your situation.