Material non disclosure and what to do if there are undisclosed assets

“Divorce is a traumatic time for all parties. Once a spouse has got over the shock of the failure of the marriage, the mind turns to more practical matters. How will they manage financially in the short term until a Court can finalise matters? What if the Husband/Wife employs underhand tactics to defeat their legitimate claims? Can matrimonial assets be transferred to other family members to put them out of reach ? How will they pay lawyers to fight their case?

Well, firstly, it may be possible to apply for what is known as a Legal Services Order, which provides for one spouse to pay a sum of money to the other spouse for the specific purpose of discharging legal bills. It is well worth considering this option as Legal Aid is rarely available now. There are also specialist companies willing to provide finance to be repaid once the settlement is available. So there are options available, and we can advise you as to the best solution for you.

“The Court are charged with achieving a settlement which is fair to both parties and provides for their reasonable needs. It is axiomatic that if one party has the benefit of robust legal representation, the other party is going to be seriously disadvantaged if they are unable to secure the services of specialist lawyers too. The Court will therefore be unable to carry out their function properly and therefore will be likely to make such an order, especially if it can be shown that the proposed “paying” party has the funds readily available ie not tied up in a business, and the “receiving” party can show that he/she does not. The Court has a wide discretion and can make an order on a month by month basis or a lump sum basis. However it must be stressed that this is not an additional sum to a lump sum awarded at the conclusion of the proceedings, and any sum “unused” should normally be paid back. The “receiving” party should also be able to confirm that they cannot borrow monies against assets, that their solicitor is not willing to wait until the conclusion of proceedings to be paid , and that they have been refused a litigation loan, referred to in para 2 of this article. Usually 2 loan rejection letters are required.”

Maintenance can be available in the short term to assist the financially weaker party to make the transition from being part of a couple to independence. However it must be stressed that there is no  “meal ticket for life” option, and unless there are very young children to care for, or age is an issue, both parties will be expected to maximise their earning potential and achieve independence from each other as a priority. We can ensure that you are appropriately protected.

“However there are some circumstances in which, for example, a wife may have spent her life as a homemaker/mother and has no realistic prospect of employment. In such cases there is a case to argue that spousal maintenance should be more than just a short term stop gap arrangement. Much will depend on the income of the paying party and the length of the marriage. It is worth noting that “seamless cohabitation”, where parties live together and then marry will extend the duration of the marriage for the purposes of the Court. However these cases are the exception rather than the rule”.

Of course it is not unknown for one party to deliberately conceal assets, either by failing to declare them, or by transferring within the family. Any transfers carried out intending to deliberately defeat the other parties claims can be revoked, and serious costs sanctions applied. Similarly if a spouse connives to secure his/her spouses signature on any document transferring a jointly owned property to themselves, or to , for example, a member of their family, or to secure a cash borrowing,  such transfer can be declared invalid. It is far more common that you may imagine.

If a party suspects such underhand tactics, the remedy is to apply for an injunction restraining disposal of assets, freezing of Bank accounts, or within the financial proceedings for a declaration that a transfer is void or voidable. The process is complex but it is more common etc etc”

Sadly domestic strife can bring about violence and we are often asked if a spouse should remain in the matrimonial home when threatened with or subjected to violence or abuse. The short answer must always be to do what is best for their safety if that means leaving. However, remaining in the home, particularly where there are children who are settled there is usually the best option for a parent with care of young children. There are proceedings available , for example, to award the right to occupy the former matrimonial home to one party to the exclusion of the other, if there is violence, or abuse .It is worth knowing that recent cases support “coercive control” as a form of conduct which could support an application to remove a party from the matrimonial home.”

This is known as an “occupation order.

Coercive control stops short of violence, and can be characterised by repeated behaviour which makes a party feel controlled, dependent, isolated or scared. It can take many forms and is often the precursor to violence. So do not hesitate to seek advice just because you have not been subjected to actual physical violence. Take steps now before matters escalate.”