The devastating effect of non-disclosure

family law

I have written here often about the duty of the parties to comply with the requirements of the court, and of the possible consequences if they do not. I have done so primarily to provide some basic advice to parties to family litigation, particularly those who do not have the benefit of legal assistance. Sadly, in my 25-odd years of practising as a family lawyer I came across non-compliance all too frequently, and I fear the problem may now be even worse, in these post-legal aid days that are dominated by the litigant in person.

Failure to comply with court orders and rules occurs in every type of family proceedings. However, it is perhaps most prevalent in financial remedy proceedings, where one or both of the parties are reluctant to disclose details of their means, and seem to think that by not doing so they will get away with hiding their assets from the court, thereby denying the other party a share of them. In the vast majority of cases they will not get away with any such thing, and far from helping their case their non-disclosure will actually make things much worse for them.

Another in the long line of cases in which one party had failed to make financial disclosure was published last week. It is the case LFL v LSL, which I mentioned here in my weekly review last Friday. LFL v LSL is a rare instance of a judgment of a district judge being published. The particular reason why it was published was that it detailed the appalling behaviour of a McKenzie friend, who disrupted the proceedings and was eventually excluded from the courtroom. However, there was much else going on in the judgment including, in particular, the issue of non-disclosure by the husband.

The judgment concerned the final hearing of the wife’s application for financial remedies. For the purposes of this post, I do not really need to rehearse the facts of the case, save to say that the wife was represented by lawyers, and the husband was a litigant in person.

The husband’s litigation conduct, or more accurately misconduct, is set out by the district judge in paragraphs 19 to 54 of his judgment. The wife had two complaints in relation to this: firstly that the husband had failed to comply with rules of court and orders, and secondly that he had failed to provide any or any adequate disclosure.

I will summarise the most serious of the husband’s failures as follows:

1) When the wife issued her application the husband was served with notice of the application, explaining that he should file the usual documents, including a form E financial statement, a statement of issues, a chronology, and a questionnaire setting out the further information and documents he required from the wife. He failed to file any of these documents, as a result of which the first appointment was abortive.

2) When the Financial Dispute Resolution (FDR) hearing took place the husband had still not filed his form E, despite the court ordering him to do so. The district judge therefore required him to complete a form E at court. The husband did so, but the form was incomplete and much of it was indecipherable.

3) The husband then filed a second form E, despite not having the required permission from the court to do so. Once again the form was incomplete and indecipherable. It also lacked the documentation that should be attached to a form E.

4) Following the FDR the judge ordered the parties to answer and provide further documents in response to the other party’s questionnaires. The wife’s questionnaire was never answered, and the husband never served a questionnaire.

5) The court ordered a joint valuation of a property in Spain. The husband did not participate in the instruction of the valuer. Instead, he chose to dispute the valuation at the final hearing and sought to adduce evidence from the internet and other agents relating to other properties, without any warning before the hearing that he intended to do so.

6) The court ordered the parties to file a statement dealing with the dates that their pensions accrued. The husband failed to comply, despite the fact that, as the district judge pointed out, to have complied may well have been to his advantage, as at least part of the accrual of his pensions must have been before the marriage, and therefore may have reduced the amount that the wife would receive (as I said above, non-disclosure can make things worse!).

7) The judge ordered that each party openly set out their proposals no less than 14 days before the date fixed for the final hearing. The wife complied, but the husband did not.

8) As the husband had still not answered the wife’s questionnaire, the court made another order requiring him to do so. Again, he failed to comply.

The district judge explained the effect of the husband’s failures as follows:

“The husband’s total disregard of the rules and court orders has had the effect of forcing the wife to a final hearing … the wife, even on the day of the hearing did not know the case she had to answer or what the husband really sought as being fair. This has caused costs to be escalated and must be taken into account when deciding whether to make any order for costs and if so, what order to make, in due course.”

He went on:

“Non- disclosure has a devastating effect. It prevents the court from considering all of the evidence that could have been available and forces the court into the unsatisfactory position of having to make assumptions as to the existence of certain assets and other relevant facts.”

Quite.

So, how did all of this affect the outcome? Well, the husband’s various failures resulted in him being ordered to pay the wife’s costs of the proceedings, in the sum of £21,285. The assets in the case were really quite modest, and that was a significant sum – no doubt sufficient for the husband to reflect upon the folly of his litigation (mis)conduct.

The full report of the case can be found here.

Photo by jridgewayphotography via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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6 comments

Mr T - September 26, 2017 at 4:14pm

INEQUALITY

It’s irrelevant. Each person should have their own funds and they should be EQUAL. Nobody should have the right to these funds after the breakdown of a relationship it’s simply ridiculous! For what reason?

This needs to change. The focus is on money not what’s right.

spinner - September 26, 2017 at 5:48pm

In reality all that happened to him was he needed to pay her costs, given he didn’t have to pay his own costs anyway that’s fair enough. Also who knows what was really going on while the court was floundering around trying to get him to fill out a piece of paper. Sounds like a good strategy I will keep a link to this article for future reference, thanks.

Ted - September 26, 2017 at 5:48pm

Wonderful!

Except it ain’t. I see a GUY catching it because HE didn’t comply — yet when my ex (a kind, faithful, generous, unselfish woman of unbelievably high probity) who I knew had assets MUCH more than she had declared — and I had solid proof of it — the judge never, at any time, demanded that she update her Form E.

With the result that the LAW actually assisted her in her rapacious behaviour — and “perjury” or even FRAUD was never even mentioned, let alone considered. So I ended up funding all of her action — and she walks away scot free, with a huge golden handshake for being SO corrupt, clever, and crooked. She had “got away with it”!

Don’t talk to me about “Justice”! Those naive fools who have never seen the inside of a courtroom of any kind, let alone a divorce court, have NO IDEA of the travesties of justice that go on there. They say, “Just rely on the law — and you will get justice.” Bullshit! Every day there are travesties of justice. You’ve never heard of the hanging of an innocent man? Never heard of a “Royal Pardons” — for something it was discovered a convicted man never did — years before?

When does a divorce court ever say, years later, “Oops!”

As for getting justice NOW…. You might as well be living in cloud cuckoo land!

Anybody who knows the real situation knows that you get justice bent your way by either having a smart lawyer (there are some) — or being so crooked you cover every one of your steps from day one.

Justice?? Humbug!

Paul - September 26, 2017 at 5:52pm

All that is required is blind compliance. The reputation of courts been sexist and descriminatory to men must have effected this mans judgement. He clearly expected this woman to steal half his house and assets legally.
A person has a legal right to privacy. Does that not extend to disclosing his assets. If the man wishes to keep his assets private. Then why shouldnt he ?
His right to privacy and a private life are protected in law.
I agree with Mr T. Peoples accounts and affairs should be indevidual. There should be no need for residual payments.

Billye - September 28, 2017 at 9:09am

Sure the court needs all the info to make what it calls a “fair” decision of assets, however we see time and again how unfair the courts can be even if a full disclosure is made.
In many cases the divorcing parties haven’t even tried sitting around a table and working it out. Instead the wife will insist in taking it all through the courts as she knows she will most likely get more than she could ever bargain for.
I would agree that it’s the husbands choice not to engage with the courts and in my opinion it is often a wise move.
At the end of the day if you have any assets in the jurisdiction then you are screwed anyway.
Men need to better prepare for divorce or better still don’t get married in these times unless you are okay with losing half of your stuff to your ex who likely contributed nothing to the marriage but will manipulate the system for her own greed.

Ted - September 28, 2017 at 3:25pm

Sadly, I couldn’t agree more.

“In many cases the divorcing parties haven’t even tried sitting around a table and working it out.”

In my case, my ex was absent for every hearing — I’ve not seen her since she initiated the divorce. Everything was done through her lawyers — and sadly, mine. Because certainly he did nothing much to help — I could have done better myself, if, like most people, I had not been “in awe” of the court, and not knowing how to conduct myself, afraid I’d say or do the wrong thing: THAT is the reason so many of us feel compelled to instruct a lawyer.

It is high time to totally “demystify” the whole process. You spend a whole wadge of money on a lawyer, and you still LOSE even MORE. I really, really do not think I could have ended up with a worse result if I had done the whole darn thing myself — from start to finish. It was stressful enough as it was — the fees mounting up just added to that. Take away the lawyer (and their fees) and a lot of the stress goes away! Most people are too damn SCARED of the courts, and the justice system. I admit, I was too. And that’s the way they WANT it. It isn’t just about respect for the law — it’s “jobs for the boys”.

We are too afraid that we cannot get “justice” UNLESS we employ a lawyer.

Well, let me say that, with the benefit of hindsight, in my humble opinion you are quite likely not to do any WORSE. Why SHOULD we have to engage a lawyer? The Court is supposed to work for US — we pay our taxes, don’t we?! Why do we have to pay again??

The courts are supposed to help LiP’s — in my case it did very little indeed. I was totally on my own — against a couple of disparaging “bully boys” armed with a clearer understanding of the law than I would care to bother with. And the judge, coming from the same stock of course, played along with them. Certainly not with me.

And of course, with divorce courts not being “open”, there is no pressing need for the judge to do anything other than what he or she feels is right — or WANTS. There is no “real time” monitoring AT ALL. So you are REALLY on your own. If they are wrong — how would you EVER know?? Do you think the lawyers for your ex are going to say anything — if it benefits them? NO. So you proceed like a lamb to the slaughter.…

And you will be.

Slaughtered.

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