The Importance of full and frank disclosure

I confirm one of the fundamental principles of resolving financial matters following divorce in England and Wales (whether through Court proceedings, mediation or negotiations through solicitors) is that both parties must give ‘full and frank’ disclosure of their financial positions. This obligation to provide complete disclosure continues right the way through until matters are concluded – so if there are any material changes in your circumstances after the initial disclosure stage, you should bring it to everyone’s attention.

In England, the principal way of giving financial disclosure is by completing and exchanging a Form E.  The importance of full and frank disclosure is that if either party deliberately misleads the other as to their financial position or does not disclose assets, then it may be possible to overturn any agreement reached based on this non-disclosure. If disclosure is not pursued or sought, then it becomes more difficult to overturn an unfair agreement as you will have chosen not to do so.

Ultimately how this case is conducted is a matter for you and I will take your instruction and direction on the matter. You do not have to seek disclosure from your wife but I believe to not do so would be a mistake. If you decide not to pursue or seek full and frank disclosure from your wife I will insist on your signing a disclaimer to confirm that I have advised you of the importance of pursuing full and frank disclosure, the reasons for doing so, and the risks and effects of not doing so. Thereafter you are of course able to agree to any financial settlement you wish and I will implement the agreement into a legally binding document called a Consent Order. You should however be aware that I may have difficulty advising you as to whether that settlement is fair, unfair or neutral as I will not have sufficient financial disclosure to do so.

Furthermore you should be aware that the duty of the Court is the administration of justice. Accordingly, the Court cannot simply rubber stamp a Consent Order – its task is to exercise its discretion under the MCA 1973, section 25 and to consider whether the terms of the agreement represent fair and proper financial provision for the parties in the circumstances of the case (Edgar v Edgar [1980] 3 All ER 887; Xydhias v Xydhias [1999] 1 FLR 683). A Court can only do so if they are provided full and frank disclosure of all the parties financial assets, resources and income and they then need to consider whether the division of those assets are fair.

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