Material Non-Disclosure in Matrimonial Proceedings

Full And Frank Disclosure, Jersey Court Oversight, And Why Delay Can Be Fatal

As if divorce is not hard enough in itself, with depressing frequency we encounter cases where, after the event, one spouse finds evidence of material non-disclosure that would have made a significant difference.  We are not talking about an extra few thousand pounds, we are talking about assets of real value such as half a ton of gold, a £5 million property, and so on. 

The Courts Are Interested In Significant Material Non-Disclosure

The catch words are ‘significant’ and ‘material’.  Courts are not interested in de minimis, per Lord Brandon “an emphatic word of warning: It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases where the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good.[ view judgement ].

The Courts are interested in significant material non-disclosure.  Courts fulfil a supervisory capacity in ancillary relief proceedings.  It is the blind-siding of the Court that offends it most, because a party falling short in respect of its disclosure obligations infringes the Court’s ability to fulfil its supervisory function.  As Lord Brandon of Oakbrook emphasised that “unless a court is provided with correct, complete and up to date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection”. Hence each party “owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court”

The Courts May Interfere With Agreements

Settlement is judicially encouraged in ancillary relief proceedings, as it is in other types of proceedings. If settlement is reached in ancillary relief proceedings people often forget that Courts are not simply going to give a rubber stamp to that settlement.  As part of the Courts’ supervisory function over ancillary relief proceedings, Courts may interfere with the terms purported to be agreed between the parties if, in their opinion, there may be unfairness.

Non-disclosure is not comparable to a breach of contract.  It is an afront to the Court’s ability to assist the parties to reach a fair solution.

The Obligation Of Disclosure

In Jersey, the Courts tend to take a pro-active approach in relation to supervising or overseeing agreements reached between the parties. To give an example, we filed a consent order where the parties had been married for over 20 years and out of £5 million the split was £2.25m : £2.75m.  The Court queried why the split was uneven.  The answer was that there was inherited wealth which had to be taken into account. This satisfied the Court, who then ratified the consent order.  The Court took care and inquired.

The obligation of disclosure is no different in circumstances where the parties have reached agreement as to the finances and where they have not.  Simply because there may be a hearing to resolve any dispute between the parties as to the finances does not alter the position that each party should be full and frank in disclosing their financial position. 

Regardless of whether the ancillaries were dealt with by agreement or not, if you suspect that there was material non-disclosure then it would be in your interests to seek advice as early as possible. Delay may be fatal, however material the non-disclosure.  The longer it goes on, the more of an uphill task it will be getting the Court to revisit the issue of disclosure and any financial orders.

If you have a problem over an agreement or related concern, contact Sinels today for expert guidance on +44 (0)1534 620500 or click here to send us a message >