How to deal with non-disclosure of information and fraudulent documents in divorce proceedings

Few people relish the stress and costs of a contested court battle and it can be daunting from the outset to find the motivation to start the fight. Whilst the vast majority of financial remedy cases settle without the need for a final hearing there are always a few that don’t and often this can be due to the approach taken by one of the parties.

What can sometimes be the most difficult to deal with is those who play the disappearing game and fail to engage. If they do not respond to court papers and do not attend hearings it can cause considerable delay to the process. However, having an absent opponent is not a bar to financial remedy claims continuing and there are range of options to obtain the required information. More common is opponents who conceal assets. In the absence of independent evidence, it can be difficult to establish hidden assets and it becomes important to build a clear case to support any allegations.

Finally, there are the (presumed) rare cases such as the opponent in my recently reported case of X v Y [2022] EWFC 95 who went further than simply refusing to provide disclosure as he was found by the Judge to have fabricated a bank statement. Given his failure to provide the necessary documents it was not until the 3 day final hearing that we finally got some answers to a lot of basic questions. This is obviously a clear example of how not to conduct litigation but what do you do when you are represented with an ex-spouse or partner acting in such a way?

The first is usually to apply for a penal notice to be attached to any order for disclosure or attendance. This then allows a committal application to be presented on the basis of contempt of court should the required action not be provided. This can be a strong motivator, however, it is like the proverbial sledgehammer to crack a nut and is not always proportionate or easy to enforce. Committal applications have a high technical threshold and of course mean extra litigation and cost.

These are perhaps a less well-known option but can be extremely helpful. The court has the power to order third parties such as banks, building societies, solicitors or accountants to disclose information directly. This is how on X v Y we were able to get the original bank statement direct from the bank to be able to establish the bank statement my client had seen was a forgery. This order was also helpful more generally to provide historic bank statements from an opponent who had failed to provide them so we can assess the matrimonial assets. However, this requires a further court application and the court needs to be satisfied it is appropriate.

More recently I have had experienced of using Subject Access Requests (SARs) where the court required an opponent to sign an authority for us to request the required disclosure direct from the third party (in that case a building society). This seems to have been successful and so could be an option where you have an opponent stating they want to comply but for whatever reason cannot. They can then provide authority for you to obtain the information direct and obviously if they refuse to then you could then seek a Third Party Disclosure order.

If you have not been able to get the required disclosure by other means and/or the opponent fails to engage even at the final hearing then the court can make adverse inferences about this failure and make orders based on this. In the case of X v Y this was done in respect of husband’s earning capacity. He had failed to provide disclosure of his efforts to seek work and his earning capacity while we had submitted evidence that someone with his level of qualification and reputation should be able to command salaries of £300,000 p.a. Faced with the Husband’s lack of evidence the court drew adverse inferences and made an assessment he was likely to have the earning capacity we had submitted and awarded the level of maintenance on this basis.

A final measure for poor litigation conduct such as failure to engage or provide disclosure is to seek an order in costs. Whilst costs are not usually awarded in financial remedies cases they are likely to be where that has been significant poor litigation conduct. Again, the threat of these can be a useful motivator to obtained compliance with the court process.

Therefore, in conclusion there are a range of options available to assist in conducting a case with a difficult opponent and good case management is key. While daunting from the outset there is always a way through to the other side even with the most difficult of opponent. As with all legal matters early and specialist advice can be key to resolving problems before they arise and hopefully ensure a successful resolution.

If you are dealing with a difficult opponent in financial remedy in divorce proceedings, contact our London divorce lawyers today for an initial consultation.