Financial Disclosure: How to Gather Information

If you are filing a divorce application, you will also need to think about the financial aspect of your separation and how your assets will be divided between you. Although the two are (legally) separate processes, they go hand in hand and should be considered at the same time.

As part of figuring out how to financially separate from one another, it is likely that you and your spouse will need to exchange financial disclosure. In this jurisdiction (England and Wales), you have a duty to be full and frank with each other, which means you must both disclose all of your assets, liabilities and income wherever they are in the world.

What is financial disclosure?

If you are attending mediation with your spouse the mediator may have their own procedure and bespoke forms for you to complete. However, ordinarily, you will both need to complete a ‘Form E’, a long document which asks you to set out your financial position in detail. The purpose of the form is to allow each of you to have a clear picture of what the other has and says they will need so that you can make informed decisions about how the finances should be divided (or if they should be divided at all).

Once you have exchanged financial disclosure, you will both have the opportunity to ask questions about the information provided if further evidence or clarity is required. For example, if you are aware that your spouse has another bank account that they have not listed in their Form E, you can ask about this in your questionnaire. If, after receiving the answers to your questions, you are still not sure you have a complete picture, you can raise further questions in a document called a ‘schedule of deficiencies’. This is not an opportunity to ask new questions but to focus on the questions you originally asked that have not been answered properly.

If court proceedings have already been issued then you will both be required to complete the Form E as a formal court direction and it will be referred to in the proceedings and seen by the judge(s) who hear your case. If you are exchanging Forms E voluntarily but proceedings are issued later on (which may require you to complete the form again if it is sufficiently out of date or circumstances have changed) it is important to bear in mind that the court can see your original form.

What documents and information do I need to provide?

The Form E is divided into numerous different sections to enable you to provide information on:

• Any property in which you have an interest.
• The sums held in your bank accounts and any investments you may have. Also, the value of any life insurance policies.
• The value of debts that are owed to you (for example, if you have loaned money to a friend that you are expecting to be repaid), any cash held in excess of £500 and any belongings worth more than £500.
• Any liabilities you have, such as credit cards or bank loans and any CGT you would have to pay if any property or other asset you have is sold.
• Business assets and directorships.
• Pensions (excluding the state pension but it will not hurt to obtain a valuation online for this so that you are aware of any potential shortfall that may need to be addressed as part of the settlement), other assets and income (from employment, self-employment, partnership, investments, state benefits and any other income).

The form also asks you to confirm your income and capital needs (i.e. how much you need to meet your outgoings and to house yourself) and any other information you would like the court to take into account. This includes, but is not limited to, any significant changes in assets or income in the last 12 months or that you expect in the next 12 months. Finally, you can confirm what orders you would like the court to make. Even if you are not in court proceedings and are completing the form voluntarily it can be a good idea to complete this section to ensure your spouse has a clear picture of what you would like to happen. If you have a solicitor, they can advise you how to complete these sections.

You are also required to provide documents in support of the information you have provided. There is an extensive list on the final page of the form; depending on your circumstances, these may include:

1. A recent mortgage statement (if applicable) and any valuations obtained in the last 6 months for any properties or land in which you have an interest.
2. For each of your bank accounts, statements for the last 12 months (this is usually one of the most cumbersome tasks in preparing your disclosure).
3. The latest statement for any investments.
4. The surrender value for any life insurance policies.
5. The last two years’ accounts and any other documents on which you base your valuation of your interest in any business.
6. A statement confirming the cash equivalent value (or ‘CEV’) of your pension(s) and confirmation of your state pension entitlement.
7. Your last three payslips, most recent P60 and P11D if you are employed.
8. A copy of your last tax assessment (or a letter from your accountant confirming your tax liability) if you are self-employed and management accounts if your net income for the last financial year and estimate income for the next 12 months is significantly different.

You can also provide additional documents where necessary to explain or clarify any of the information you have supplied in the form.

Common mistakes people make when completing their disclosure

Providing your disclosure can be a protracted and cumbersome task so start gathering this information as soon as possible. It’s not unusual for mistakes to be made but these can lead to avoidable questions being asked at the questionnaire stage, which can increase the time spent on exchanging full disclosure and, if you have a solicitor, will increase your costs.

A common mistake is failing to list bank accounts because they are inactive or have a nil/negligible balance. Even if you no longer use the account, it must still be listed and bank statements provided (evidencing the zero balance). Another mistake is not calculating the total figures correctly. The form provides for all of your assets (less any liabilities) and income to be set out so that your spouse has a clear snapshot of your financial situation. Miscalculations can lead to further mistakes down the line if the figures are used in, for example, an asset schedule.

Finally, it is really helpful all round if the documents attached to the form are in a coherent and clearly labelled order. When putting your disclosure together you should aim to provide as much information clearly and as concisely as possible to avoid further questions. Bank statements are often numbered so it can be easy to see where there is a missing page. Likewise, provided there is a clear run of chronologically-dated entries, there is no need to include the superfluous pages often sent by banks.

What happens if you and your spouse agree not to exchange financial information?

It is possible for you and your spouse to agree not to exchange full disclosure via Form E. This might arise where the situation is amicable between you and you have already agreed how to resolve the financial aspect of your separation (which will need to be jointly filed with the court in a consent order). In that case, the court still requires you to provide some disclosure, but in a much shorter form called a ’Form D81’. This is simply a summary of your finances that shows the net effect of your agreement without providing full details or documentary evidence in support.

If you and your spouse have agreed the above, your solicitor (if you have one) is unlikely to be able to advise you properly about whether or not the agreement you have reached is fair and in line within the bracket of outcomes that a court may have ordered. To do this, they will need to see full disclosure by way of the process set out above. It is not uncommon for solicitors to ask clients who wish to proceed this way to sign a waiver confirming that they understand they are entitled to see full and frank financial disclosure from their spouse, that they wish to proceed without it, and that they accept the inherent risk that there may be unknown assets (or liabilities) of which they have no knowledge. It can be extremely difficult to revisit once concluded so advice should always be sought and caution exercised as to any potential unknowns. Your solicitor is not trying to be difficult. Instead, use this point as a moment to pause and reflect as to whether you are entirely content with the agreement you have reached and whether there is anything else you wish to know.

Conclusion

The main thing to remember when preparing your Form E is to start it early (don’t leave it until the week before you are due to exchange) and be as thorough as possible. It is one of the most important documents you will need to prepare during your separation and will be referred to often. Your case could be delayed if it is not completed correctly or insufficient information has been provided. It is also an opportunity for you to take stock of your own financial situation, obtain a much clearer understanding of your family’s overall finances and help you plan for the future.

Read more articles by Burgess Mee.

About Vikkie Chetcuti-Gee

Vikkie Chetcuti-Gee handles a range of family law cases, including complex financial proceedings frequently involving family trusts, significant business structures and forensic disclosure requests. She specialises in pre- and post- nuptial agreements for a range of clients from all walks of life, often for high net worth clients with a focus on sports personalities and their families. She also has a wealth of experience in private children law matters, particularly involving allegations of domestic violence and abuse, and where the other party involved is particularly intransigent. Vikkie is a member of Resolution and is committed to resolving cases in a non-confrontational way where possible.