A ruling by the Court of Appeal says that divorcing couples can’t help themselves to each other’s financial documents without their knowledge. What does it mean if you’re going through a breakup?
If you’ve never been through a divorce or your divorce was completely amicable then the idea of one partner snooping round the computer or filing cabinet of another might seem rather odd, but ‘self help’, as it’s called, happens in many cases in England and Wales (although it’s not something that has been allowed in the same way in Scottish divorces). It’s been something of a grey area legally, but up until this court case, the general view has been that couples could take copies of documents from desk drawers or filing cabinets (except when they’ve been locked) or from computers – as long as they haven’t had to resort to hacking into the system!
What the judgement means
When couples get divorced they are supposed to disclose their financial situation. It’s normally done through a ‘form E’ in England and Wales and although there isn’t the same form in Scotland, couples are still meant to be upfront and honest about what they have.
In Scotland, only the assets that you own or built up during your marriage are relevant in a divorce case. Anything you owned before you were married generally isn’t included – although there are a couple of exceptions – such as a house or flat that you bought before you got married that you planned to live in afterwards.
One partner cannot take copies of another’s documents when divorcing
The Court of Appeal ruling effectively says that one partner cannot take copies of another’s documents and that married couples have a right to privacy (from each other). Previously courts seemed to take the view that the end justified the means and if a wife (or husband, although it has been more often the wife who’s been in the dark about the finances) took copies of bank statements etc, the need for a full and frank disclosure of the couples’ finances overrode any concerns about the legality of the action.
Is it a cheat’s charter?
When it comes to dividing the finances, the situation is rarely straightforward and it’s certainly true that there are divorces where one partner– normally the wealthier of the two – will try and hide the extent of their true wealth.
There are ways that you can force your husband to be open about their financial situation if you suspect they won’t be truthful, but it can be expensive – and it might be very expensive indeed.
Finding hidden money during divorce
When you fill in a form E, you don’t just say how much money you have, you must produce certain documents (such as bank and pension statements etc) as well. Your lawyer can then ask for more information if they need to. If you think your husband isn’t being truthful you can:
• Get a forensic accountant involved. Forensic accountants can be very expensive but you should be able to get an assessment of whether it’s worth spending money finding hidden assets for a few hundred pounds. The bad news is that if the accountant believes assets have been hidden it can cost tens of thousands of pounds to find them.
Using search orders
• Use a search order. In England and Wales you can use a ‘search order’ (also known as an ‘Anton Pillar’ order) if you think your ex has a bank account/property investment/collection of classic cars that he’s not being honest about.
The problem with search orders is that you can’t use them to go on a fishing expedition just because you think your ex isn’t being honest. That means you have to have evidence that a particular account exists before you can find out more about it.
• Use a freezing order. In England and Wales there’s another court order, called a freezing order (or injunction), which is useful if you think your ex is about to sell a business/shares or property etc without telling you.
Both of these legal orders can cost tens of thousands of pounds and courts won’t grant them without very good reason.
In Scotland, you can use something called a ‘commission and diligence’ order. It’s cheaper than search or freezing orders in England and Wales and it means you can bypass your husband (or wife) and go direct to their bank, accountant or financial adviser to get information they seem reluctant to provide. Once again, you have to be specific about the information you’re after.