Hidden assets occasionally come to light after a couple have settled their divorce financial claims. What should you do if you learn that your ex-partner failed to disclose certain assets or provided misleading information about them?
“The first thing you should do is take legal advice from specialist divorce lawyers” explains Lincoln based family solicitor Diane Genders.
“A court can refuse to set aside the old agreement if there has been delay in taking action once the new information has come to light.
“An application should be made as soon as possible. There is a danger in trying to renegotiate a new deal without making an application to court. This can happen with the best intentions – perhaps to minimise legal fees or to keep things amicable – often at the request of the partner who did not disclose the information in the first place!
“We can still renegotiate a new settlement, or try mediation, if a court application has been made. The court application will be paused to enable settlement discussions to take place.
“The risk is that too much time passes between the hidden assets coming to light and the court application being issued. In this situation the non-disclosing partner is likely to argue that there has been delay. If the court agrees then it has the power to reject the application.
“This can sound unfair,” explains Diane, “but the court has to balance the need for justice with the need to allow individuals to move forward with their lives once divorce financial claims have been resolved.”
Diane’s advice is clear; “If it turns out that your ex-partner had assets that he or she misled you about or hid altogether then take advice. Do not spend too long at this stage in trying to fix matters. Make an application to court sooner rather than later to protect your position. Once you have made your application then the courts will help you – and expect you – to get the full information and work out a new settlement.”
How recent does the settlement have to be?
The original settlement or order itself can be many years old.
It is not the time that has passed between the financial settlement and the discovery of the new information that is critical. It is the time that passes between the discovery of the information and doing something about it.
A partner who has hidden assets cannot argue that they have got away with it for so long that the court should not re-open the negotiations and settlement. That can never be right. He or she can argue that the other person has known about the non-disclosure for many months or years and held off taking action as a defence.
Is the non-disclosure relevant?
The hidden assets or non-disclosure must be relevant to the matters that were in dispute. The court will only reopen negotiations if the information would have made a difference to the outcome.
Specialist family law advice will help you to explore whether this applies in your situation.
Should you have known in the first place?
Another defence to re-opening settlements where hidden assets have come to light is that the other person should have done more to find out the true picture.
This defence can be successful in cases where the other person had access to the information but chose not to use that access, such as where there is a joint bank account, known to both partners.
The recent case of KG v LG makes it clear that there is a duty of `Reasonable enquiry” in this sense.
However where a husband or wife does not know about an asset, or have access to the information then the duty remains on the partner with knowledge to make sure he or she provides full and frank financial disclosure.
I’m worried about non-disclosure. What should I do?
If you are worried about your partner’s non-disclosure then contact Diane Genders Solicitors, specialist divorce lawyers in Lincolnshire, on 01522 516500. If you would prefer to email in confidentiality then CLICK HERE and ask to speak to one of our experienced family solicitors.