The practicalities and the law.
“I need a financial settlement in the divorce. I am having trouble agreeing on everything because I am suspicious that my Husband is concealing assets. He’s always been secretive. How can I prove my suspicions and get him to disclose them?”
This is an important question and one that occupies the minds of all solicitors representing clients in financial relief cases such as yours. It was considered most recently by the courts in the much-publicised case that you may have seen in the media, involving (I mean) a very rich couple indeed.
The legal practicalities required
You need some evidence. ‘He’s always been slippery’ isn’t enough.
Understand from the outset that you are each obliged to disclose your own financial circumstances as to all property that you hold together or separately, so that either a fair financial settlement can be reached between you or in the absence of an agreement that a Court can hear the evidence and order how the assets (capital, income, pensions) will be divided.
The difficulty is determining the honesty of such disclosure. If you are suspicious that your Husband is concealing assets from you so that you cannot claim against them, then it is for you to prove (on the balance of probabilities) that these assets exist. That may be a property, investments, or undisclosed source of income, perhaps.
You must persuade a court that your Husband is concealing assets. You then must persuade a court why it is relevant that these assets are frustrating your legitimate needs flowing from the breakdown of your marriage or, beyond need, your fair share of remaining assets.
There are numerous examples of attempts to ‘trace’ these missing assets. Would there be any paper trail leading to the asset that you identify as missing? Are any deeds accessible in the public domain? Receipts? Any existing financial connections of his who can be called as a witness? Are any listed or previous directorships? Any offshore assets that you believe may be held and why do you think this may be the case?
The legal principles applied
A court, faced with matters of non-disclosure of assets, has the power to make an inference (a conclusion, based on evidence and reasoning), upon the nature and extent of your Husband’s failure to disclose an asset. The court can then include this within the overall asset schedule of the marriage so that a share for you can be considered.
This court power is tempered by the requirement to examine the evidence supplied critically and determining facts from this evidence. They then must be considered relevant to your case. In other words, a finding cannot be made speculatively, it can’t be made disproportionately, and it can’t be made unreasonably.
The best thing to do is to come and see us with your concerns, because it is our job to determine and apply current legal principles like these (which, as you can see, can be complex), to the individual circumstances of your case and look at the cost of pursuing this and the likelihood or otherwise of any benefit to be gained by it.
For further information please contact a member of the Family team.