Voluntary disclosure does not mean “Getting away with it”
Many divorcing couples disclose their income, assets and pensions on a voluntary basis rather than going through the more formal court process. Doing so can be quicker, save costs and make negotiating an out of court settlement more likely.
A minority, however, see voluntary disclosure as being the soft option.
“Voluntary disclosure can lack the rigorous process and checks otherwise found in the court system. Complicated and unwelcome questions and requests for documents and explanations can sometimes be sidestepped or ignored altogether by the reluctant spouse or partner. For them, voluntary disclosure feels like a way of avoiding having to disclose everything.
“There can also be a temptation to justify non-disclosure by thinking that if the other person doesn’t ask or doesn’t catch on that there is something missing then they only have themselves to blame.”
A recent case has stated that this is not correct.
Full and frank disclosure is always your responsibility. You cannot push that responsibility onto your spouse.
If you exchange financial information voluntarily then you must still disclose everything that is relevant to your matrimonial finances. If you do not and your finances are later revealed to be different to how you have suggested then the settlement is likely to be overturned by a court.
This will apply whether your non-disclosure is a deliberate strategy to withhold or distort information or you simply become aware that your spouse or partner has misunderstood something or does not know about certain issues.
Settling finances on divorce is not like buying a car or a house.
There is a critical difference between settling divorce cases and other kinds of transactions.
In other situations, such as buying a house for example, the ancient legal doctrine of caveat emptor applies, meaning “Buyer beware.” Caveat emptor means that it is the buyer’s responsibility to know everything about the deal they are entering into – save for some situations where deception or misleading information has been presented.
This doctrine of “Well, they should have known or found out” does not apply to financial settlements on divorce. Just because a husband, wife or partner does not ask does a certain question that would have revealed the correct or full picture being revealed does not mean that you do not have to tell.
It is your duty to provide the full and accurate information. It is not their duty to investigate and discover the truth.
There are some exceptions. A partner cannot complain where both of them have access to the relevant information that only later comes to light -for example, a joint named account that they should have both known about. There will be a need to use reasonable levels of enquiry to test what is being said at the information disclosure stage.
Where only one partner has access to information or knowledge, however, then the duty is very much upon that partner to provide a full and accurate disclosure.
If you do not tell and the issue comes to light at a later date, then you could be in a very vulnerable, and expensive, situation, even years later.
In our next article we will explore what the other party must do when non-disclosure comes to light to make sure that the court will take action.
Let us help you
If you are thinking of divorce or worried about voluntary disclosure in your case then get in touch with one of our Lincolnshire based specialist divorce lawyers at Diane Genders Solicitors in Lincoln.
We will help you to understand the options available to you and how you can protect yourself and your family at this time.
You can call us on 01522 516500 or email in confidence here and ask to speak to one of our experienced family solicitors.