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Category: Financial Remedy

  • Will My Ex Be Punished for Non-Disclosure in Financial Remedies?

    One of the most common worries we hear from clients going through a divorce is: “I know my ex is hiding money. What happens if they don’t tell the truth about their finances?”

    It’s an understandable concern. A fair financial settlement depends entirely on both parties putting their full financial picture on the table. When one person hides assets, understates their income or “forgets” about a bank account, the other person can be left feeling powerless.

    The good news is that the family courts in England and Wales take non-disclosure extremely seriously. While the court’s main aim is to reach a fair outcome rather than to punish, a spouse who fails to disclose their finances properly can face significant consequences. This article explains what those consequences are and what you can do if you suspect your ex is not being honest.

    The duty of full and frank disclosure

    In financial remedy proceedings, both parties are under a legal duty to give full, frank and clear disclosure of their financial circumstances. This duty was confirmed by the House of Lords in the leading case of Livesey v Jenkins [1985], and it remains the cornerstone of every financial case today.

    In practice, disclosure usually happens through Form E, a detailed financial statement covering property, bank accounts, pensions, investments, business interests, income, debts and future needs. Form E must be signed with a statement of truth, confirming that the information is complete and accurate. The duty also continues throughout the case. If circumstances change, such as a new job, an inheritance or the sale of an asset, that must be disclosed too.

    The duty applies whether the case is decided by a judge or settled by agreement. A settlement reached on the basis of incomplete information may not be safe.

    What can happen to a spouse who hides assets?

    1. The court can draw “adverse inferences”

    This is the most common and often most powerful consequence. If the court is satisfied that one party has not been honest about their finances, it does not simply accept their figures. Instead, the judge can draw inferences about what the true position is likely to be.

    The Supreme Court confirmed in Prest v Petrodel Resources Ltd [2013] that family judges are entitled to draw such inferences where a party has failed to provide proper disclosure. In Moher v Moher [2019], the Court of Appeal explained that the court should make a realistic, reasoned assessment of what undisclosed resources exist, based on all the evidence available.

    In simple terms, a spouse who hides money may find the court concludes they have more than they claim, and divides the assets accordingly. Attempting to conceal wealth can therefore backfire badly.

    2. Costs orders

    The general rule in financial remedy proceedings is that each party pays their own legal costs. However, the court can depart from that rule where one party’s conduct during the proceedings has been unreasonable. Failing to comply with disclosure obligations, providing misleading information or forcing the other side to spend money uncovering hidden assets are all classic examples of litigation misconduct.

    A spouse who drags out the process through non-disclosure may be ordered to pay some or all of the other party’s legal costs, which can amount to a substantial sum.

    3. Contempt of court

    Signing a Form E or witness statement with a statement of truth while knowing it to be false is a serious matter. Under the Family Procedure Rules, proceedings for contempt of court can be brought against someone who makes a false statement in a document verified by a statement of truth without an honest belief in its truth.

    Similarly, where the court has made a specific order requiring disclosure (often carrying a penal notice), breaching that order can amount to contempt. The potential consequences include fines, seizure of assets and, in serious cases, imprisonment.

    4. Settlements and orders can be set aside

    If non-disclosure only comes to light after an order has been made, all is not necessarily lost. In the landmark cases of Sharland v Sharland [2015] and Gohil v Gohil [2015], the Supreme Court confirmed that where a financial order was obtained through fraudulent non-disclosure, it will generally be set aside unless the party who hid the information can show the court would have made the same order anyway.

    This means a spouse who deliberately hides assets cannot assume they are safe once the case is over. The case can be reopened.

    5. Criminal consequences in serious cases

    In the most serious cases, deliberate dishonesty in court proceedings can potentially give rise to criminal liability, for example under the Fraud Act 2006 or perjury legislation. Prosecutions are rare in the family context, but the possibility underlines just how seriously dishonesty is viewed.

    Is it really “punishment”?

    It is worth being clear about how the family court approaches this. The court’s primary purpose in financial remedy proceedings is to achieve a fair outcome for both parties and any children, not to punish one spouse for bad behaviour.

    That said, the practical effect of the consequences above can feel very much like punishment for the person who has been dishonest. A spouse who conceals assets may end up with a worse settlement than if they had been truthful, a large bill for the other side’s costs, and potentially contempt proceedings. Honesty is almost always the better strategy.

    What can you do if you suspect your ex is hiding assets?

    If you believe your ex has not provided full disclosure, there are several steps that can be taken:

    • Raise a questionnaire. After Forms E are exchanged, each party can ask targeted questions and request further documents to fill gaps in the other’s disclosure.
    • Apply for specific disclosure orders. The court can order a party to produce particular documents, often with a penal notice attached. Our guide to using a D11 application and unless order explains how this works.
    • Seek disclosure from third parties. In appropriate cases, the court can order banks, employers or other organisations to provide information directly.
    • Instruct experts. Forensic accountants can trace money, value businesses and identify unexplained transactions.
    • Apply for a freezing order. If there is a real risk your ex will dissipate or move assets to defeat your claim, the court can make an order preventing them from doing so.

    A word of caution: you should not take matters into your own hands by accessing your ex’s emails, devices or private documents without permission. Doing so can be unlawful and may damage your own case. Always speak to your legal adviser about the right way to raise your concerns.

    How Puna Family Law can help

    Suspecting that your ex is hiding money can be stressful and frustrating, but you do not have to deal with it alone. We regularly support clients in financial remedy cases where disclosure is in dispute. We know how to scrutinise financial statements, ask the right questions and use the court’s powers to make sure the full picture comes to light.

    Whether you are at the start of your divorce, part way through proceedings, or have discovered something new after a settlement, we can help you understand your options and protect your financial future.

    Contact Puna Family Law today to arrange a confidential consultation.

    This article is for general information only and does not constitute legal advice. Every case is different, and you should seek advice tailored to your circumstances.

  • Non-Disclosure in Financial Remedy Cases: Using a D11 Application and Unless Order

    Non-Disclosure in Financial Remedy Cases: Using a D11 Application and Unless Order

    Legal documents and gavel representing financial remedy disclosure

    In financial remedy proceedings, full and frank financial disclosure is not merely an expectation — it is a legal obligation. When a spouse or former partner deliberately conceals assets, fails to provide documents, or gives evasive answers, the court has powerful tools to force compliance. One of the most effective mechanisms is making a Form D11 application seeking an Unless Order. This article explains what non-disclosure looks like, how to pursue it, and what an Unless Order means in practice.

    What Is Non-Disclosure in Financial Remedy Cases?

    Financial remedy proceedings require both parties to provide complete, honest, and up-to-date disclosure of their financial position. This is typically done through Form E — a detailed financial statement covering income, assets, liabilities, pensions, business interests, and expenditure. Supporting documents must also be produced, including bank statements, tax returns, payslips, and valuations.

    Non-disclosure arises when a party:

    • Fails to file Form E at all, or files it in an incomplete or vague manner
    • Omits significant assets — such as property, savings, business interests, or investments — from their disclosure
    • Does not produce required supporting documents (e.g., bank statements, pension details, business accounts)
    • Provides misleading valuations or understates the value of assets
    • Fails to comply with a questionnaire served by the other party or ordered by the court
    • Transfers or dissipates assets to avoid their inclusion in a settlement

    Non-disclosure fundamentally undermines the fairness of financial remedy proceedings. The court cannot distribute assets it does not know about, and a settlement reached on the basis of false or incomplete disclosure can be set aside at a later date.

    The Court’s Duty and Your Right to Full Disclosure

    The Family Procedure Rules 2010 and Practice Direction 9A place disclosure obligations firmly on both parties. The court expects Form E to be completed with scrupulous honesty. Judges have a duty to ensure that proceedings are conducted fairly, and where they suspect that disclosure is deficient, they are entitled — indeed required — to investigate further.

    As the Supreme Court confirmed in Sharland v Sharland [2015] UKSC 60 and Gohil v Gohil [2015] UKSC 61, fraudulent non-disclosure goes to the heart of financial remedy proceedings. A consent order or final order obtained on the back of non-disclosure may be set aside, even years later. The courts take this seriously — and so should you.

    What Is a Form D11 Application?

    A Form D11 is the general application form used in family proceedings to make an application to the court for a specific order or direction. It is the procedural mechanism through which you bring a matter formally before the judge.

    In the context of non-disclosure, a D11 application can be used to seek a range of orders, including:

    • An order compelling the other party to provide specific documents or information
    • An order for third-party disclosure (e.g., from banks or HMRC)
    • A freezing injunction to prevent dissipation of assets
    • An Unless Order — one of the most significant enforcement tools available

    The D11 form must set out clearly what order you are seeking, the grounds on which you are making the application, and the supporting evidence. It should be filed with the court and served on the other party.

    What Is an Unless Order?

    An Unless Order is a court order that carries an automatic and immediate sanction if the party to whom it is directed fails to comply by a specified date and time. The name comes from its characteristic structure: “Unless [Party] does [X] by [Date], [Consequence] shall apply automatically.”

    In financial remedy cases, common Unless Order sanctions include:

    • The non-complying party’s case being struck out — they lose the ability to defend the proceedings or make claims
    • Their statements being excluded from the proceedings
    • A costs order being made against them
    • Adverse inferences being drawn — the court assumes the missing information would have revealed undisclosed wealth

    The power to make Unless Orders derives from the court’s case management powers under the Family Procedure Rules 2010, particularly Rules 4.1 and 4.3, which allow the court to impose conditions and sanctions to secure compliance with its orders.

    How to Pursue Non-Disclosure: A Practical Step-by-Step Guide

    Step 1: Identify and Document the Non-Disclosure

    Before making any application, you need to identify precisely what is missing or deficient. Review the other party’s Form E and supporting documents carefully. Consider whether bank statements cover the required periods, all properties and business interests are listed, pension valuations (CETV) have been obtained, income figures match their known lifestyle, and whether any unexplained transfers of money or property have taken place.

    Step 2: Raise Concerns at the First Appointment

    At the First Appointment (FDA), each party must file a questionnaire setting out requests for further information or documents from the other party. This is the formal opportunity to identify gaps in disclosure and seek court-ordered responses. The court will consider which questions are necessary and proportionate, and will issue an order directing the other party to answer within a specified timeframe.

    Step 3: If Non-Compliance Continues — Make a D11 Application

    If the other party fails to answer the questionnaire or provide ordered documents, you should file a Form D11 application seeking an Unless Order. Your application should specify exactly what has not been disclosed, refer to any prior court orders not complied with, explain the relevance of the missing information, state the specific order sought including the proposed sanction, and be supported by a witness statement setting out the history of non-compliance.

    Step 4: The Court Hearing

    The court will list the D11 application for a short hearing. Both parties will be able to make representations. The judge will consider whether non-compliance has occurred, whether it is serious enough to warrant an Unless Order, and what sanction is appropriate. Where a party has repeatedly ignored orders, the court will act decisively.

    Step 5: After the Unless Order Is Made

    If the Unless Order is made and the defaulting party still fails to comply by the deadline, the sanction takes effect automatically — no further court order is needed to trigger it. However, “automatic” describes how the sanction bites legally; it does not mean enforcement will look after itself. In practice, you will often need to take active steps to give the sanction practical effect.

    Depending on the circumstances, enforcement may require:

    • Returning to court for a final order — if the sanction is that the other party’s case is struck out, you will need a further hearing to obtain the final financial remedy order on an undefended basis
    • A committal application — where the Unless Order required production of documents or assets and the party has wilfully refused, you may need to apply under FPR Part 37, which can result in a fine or imprisonment for contempt of court
    • Further enforcement orders — where assets have been dissipated or hidden, additional applications such as a third-party debt order, charging order, or judgment summons may be required
    • Having the sanction formally recognised — sometimes the defaulting party simply ignores the automatic consequence and continues to participate in proceedings as if nothing has happened, requiring you to return before the judge to have the sanction applied

    The defaulting party may apply to be relieved of the sanction, but the court will apply the structured three-stage test from Denton v TH White Ltd [2014] EWCA Civ 906, as applied in family proceedings: (i) how serious and significant was the breach; (ii) why did it occur; and (iii) all the circumstances of the case, including the need for litigation to be conducted efficiently. Where non-compliance is serious, unexplained, or deliberate, relief will rarely be granted — and the longer a party waits to apply, the less sympathetic the court is likely to be.

    Drawing Adverse Inferences

    Even without an Unless Order, the court has the power to draw adverse inferences from a party’s failure to disclose. This means that if the court is satisfied that a party is hiding assets, it can assume the undisclosed assets exist and attribute a value to them when making a final order. Courts will look at lifestyle evidence, property records, company accounts, and other indicators to form a view of the true financial picture.

    How Puna Family Law Can Help

    Dealing with a financially evasive partner is frustrating and stressful. At Puna Family Law, we assist clients as a McKenzie Friend and paralegal service, helping you navigate the procedural complexities of financial remedy proceedings, prepare D11 applications, draft questionnaires, and put the strongest possible case before the court.

    Whether you need help identifying what is missing from the other party’s disclosure, preparing a Form D11 application for an Unless Order, or understanding your rights at each stage of the process, we are here to support you with practical, cost-effective guidance.

    Contact us today to discuss your situation and find out how we can help you secure the full and fair disclosure you are entitled to.