Since the case of divorce lawyers country wide have been concerned at its impact and the fact that the previous raft of information that as ready available for investigation is now entirely limited. It is a criminal office to break into someone’s emails, to listen to their phone messages or look at their text messages.
Accordingly, even if information shows that your partner has been hiding assets, the method by which you have come by this information is all important.
Since has now restricted this, lawyers have been looking to use various different types of Court order to ensure that they have a full financial picture of the other side and to assist the Court knowing that they have the full picture when dividing up at the assets on divorce.
Since the decision in the notion of self help is now unconscionable for fear of either criminal or civil sanctions. However what of fairness to both parties and of the need for a divorce lawyer to give meaningful advice to a client.
These questions are increasingly being asked by divorce lawyers since the case of and what ‘weapons’ can a party deploy together with their divorce lawyer to ensure that full and frank disclosure is made.
Firstly, to persuade a Court that any of the remedies can assist a prima facie case for non-disclosure is of great importance. In the alternative evidence taken together needs to be sufficient to show that the Court should make one of the Orders suggested below as to not do so would cause more prejudice to the case.
Divorce lawyers should be familiar with such Orders (as is this firm) and when they are best to be used. Given the threat of criminal and civil sanctions since parties must have recourse to alternative methods of asset tracing. Since the case of the methods will have become more familiar to divorce lawyers.
The first step is consideration in detail of the financial disclosure made already during the proceedings or on a voluntary basis. A watchful eye for any unusual bank account entries or assets known to a party not disclosed, should be the first port of call. Disclosure directed by the Court is often the best way for disclosure to commence because of the need for sworn Statements. Further disclosure is often necessary however initial disclosure is always a first step in the investigative process.
Letters of Request
Application together with evidence in support is necessary to convince a Judge that a letter of request should be sent. Cases can be transferred to the High Court for this purpose. Letters of Request are more frequently used where there are assets abroad where a letter of request will ask another judicial authority in another country to help an English Court deal with the divorce case fairly.
In the right circumstance Letters of Request can be a power tool at getting at the bottom of foreign assets allowing the financial pot to sometimes increase substantially as well as protecting the existing assets. Existence of offshore assets can often assist a party who wishes to make a spousal maintenance claim particularly when one party is saying that they do not have sufficient assets or income to pay such maintenance from their assets in the UK. Letters of Request however can be expensive as often the Courts in other jurisdictions may require their fees to be paid or often fees of third parties paid where financial information or disclosure is provided by them. This cost can often be claimed from the other party or ordered by the Judge to be paid by the other side at the end of the case.
As already set out strong prima facie evidence is required for a Search Order. A Search Order allows one party to enter premises to search and remove evidence before the other party has had an opportunity of putting his side in a case or more importantly before destroying evidence of potential assets.
Search Orders can include computers and other electronic devices such as mobile phones, Blackberry’s and lap tops. Often evidence can be found on computers as they are now a common part of everyday life. Much depends upon the exact nature of the Search Order however it can be an extremely useful tool for gathering evidence and tracing and identifying assets. However, there must be potential or actual damage to one party arising from the lack of disclosure by the other party and that the other party is in possession of incriminating evidence. There needs to be a real possibility that one party will destroy or tamper with that evidence resulting in harm to the other party.
A Disclosure Order is one where the court orders evidence from an innocent party, such as a bank or accountant who may be mixed up in the wrong doings of one party. These are interesting cases where the third party through no fault of their own is mixed up in the acts of one party in the case so as to facilitate wrong doing. The Courts recognised that these Orders are no longer for just the identity of the wrong doer however also can be used to obtain disclosure or information critical to the party’s claim against the other.
It is useful to know that these Orders are recognised by a number of offshore common law jurisdictions and as a result become a useful tool for obtaining information about assets which have been concealed in other jurisdictions.
Wrongdoing must have been carried out and there must be a need for an Order to be made so as to enable action to be brought against the ultimate wrongdoer (often the other party in the divorce litigation). Further there must be a need for the person against whom an Order is to be made must be mixed up in the wrong oing and be able or likely to provide the information necessary to enable to wrong doer to be brought to justice.
This Order can be made without notice to the other party so as to reduce dissipation and concealment of that asset or assets.
Whilst the case of was of great concern for family lawyers the duty of full and frank disclosure should be sacrosanct. A party should not be limited from using alternative weapons within its arsenal aimed at ensuring that disclosure is made so as to ensure that fairness can be done between the parties.
One party should not be at a disadvantage to the other when their independent financial future is dependent upon the outcome of the divorce proceedings. Particular care should therefore be made in cases where clients are of an international nature and where their assets may be held abroad.
If you are considering whether a Letter of Request, Search Order or Disclosure Order may be appropriate in your case then you should take independent legal advice on divorce finances from a divorce lawyer in this area before proceeding. This firm is of course always happy to assist.