Fraud in Divorce - is your ex crying poverty?

When going through divorce, full and frank disclosure is an essential element upon which financial negotiations and proceedings are based. For there to be a fair settlement, all assets and income need to be identified and valued.

Occasionally, personal motives can mean that one party might overstate or understate asset values and/or income, or even fail to disclose them altogether, in the hope of either retaining or obtaining a larger share upon divorce. Sometimes, one party may earn more, have greater assets, or just generally have a much greater knowledge and understanding of the wealth in the marriage.

Failing to disclose or wilfully understating the values of assets in a divorce cases is fraud.

Livesey v Jenkins [1985] is longstanding authority on both the existence of the duty of full and frank disclosure and the consequences of its breach when a consent order has been approved. 

1. The court cannot properly exercise its discretion under section 25(1) of the Matrimonial Causes Act 1973 (MCA 1973) unless it is provided with correct, complete and up-to-date information when undertaking this assessment/exercise.
2. Each party owes a duty to the court to make full and frank disclosure of all material facts to the other party and to the court.
3. The principle of full and frank disclosure applies to cases resolved by consent as well as contested proceedings.
4. A party who fails to make full and frank disclosure risks the court setting aside an order made by consent or after contested proceedings.
5. However, it is only in cases where the absence of full and frank disclosure would have led to an order which is substantially different that a setting aside order will be made. The non-disclosure must be material.

More recently, the Supreme Court decisions in Sharland and Gohil [2015] demonstrated that the family court will not tolerate non-disclosure and that parties must take their obligations of full and frank disclosure seriously. Upon appeal from the wives, the court ruled in favour of them both and remitted both cases back for re-trials. In each case, the husbands’ disclosure was found to have been fraudulently dishonest.

Sharland in particular builds on Livesey so that in cases of fraudulent non-disclosure, there will be an assumption that the order will be set aside unless it really would have made no real difference. This brings the family court in line with the civil division, which has long held that fraud unravels all.

For anyone going through divorce or separation, some red flags to look out for are: 

• Changes to online accounts and passwords;
• Transfers of property or shares to children/family members;
• Unusual cash withdrawals or spending;
• Loaning or giving away money;
• Sudden reduced income;
• A reduction in the value of assets or their business;
• Changing business arrangements.

The Myerson family law team specialise in complex and high-value divorce and family disputes. Our solicitors are vigilant to ensure proper disclosure is given by both parties. If you believe your spouse is trying to mislead you about their wealth, or if you require any advice regarding the issues raised in this article or any other family law matter, please contact one of our specialist family law solicitors on 0161 941 4000 or by emailing lawyers@myerson.co.uk