Fri 22 Feb 2013

Love, lies and revenge

A survey recently reported by the BBC concludes that a quarter of the divorcees questioned had attempted to hide financial assets to keep them "secure" on divorce. Depressingly, another motive cited in the survey was "revenge".

I'm probably not the kind of person known for my shining faith in the innate honesty of my fellow man. I'd describe myself as "realistic" - although others might use the phrase "cynical lawyer". However - perhaps to your surprise - I disagree with the findings of this report. It is not the experience of our team here that many - or anywhere near a quarter - of our clients or their spouses try to hide assets.

I note that the report does not mention how many people were surveyed, or how they were selected.

I also note that the survey respondents claimed they had "tried" to hide assets - and not that they had necessarily done so successfully.

The first task in assessing the financial circumstances of any divorce (whether under Scots or English law) is to find out what assets and liabilities there are. Sometimes this is a straightforward task; sometimes it can be more complex.

However, the view of our team here is that it is pretty difficult to "hide" assets. Some of the examples given in the survey (such as transferring money to new partners, or clearing out joint accounts) can be very easily identified from bank statements, and then taken into account in the overall settlement. Another issue mentioned - alleged debts to family which are in fact no such thing - does sometimes come up. Again, the truth of this can usually be ascertained by examining what documentation (if any) exists to back up the claim, and what the various parties involved say when questioned.

Matters can get more complex - for example, where the assets are based abroad, or where one party has had control of all of the financial information and is very reluctant to divulge. However, within both the Scots and English legal systems, there are methods of forcing disclosure by way of court order. Relevant documentation can be sought directly from banks or other individuals, at least where the assets are within the jurisdiction. We frequently work together with forensic accountants to ensure we have all of the relevant information, and that the assets are properly valued.

There is the occasional, very exceptional, case, perhaps involving assets in a complicated offshore structure, where despite best efforts it is not clear that full disclosure has been made - usually due to the lack of recognition of UK court orders in that country. That situation is far removed from the average case, in which I am usually quite clear that I have a good picture of the total assets, and can advise accordingly.

Those are my thoughts - but I would be interested in yours. Fellow family lawyers, do you agree with me, or with the survey? If the latter, do you really think there are a lot of assets hidden successfully (rather than incompetently) in divorce cases? Or is anyone who has been through a divorce willing to make a confession…?

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