News:

Since the inception of the European Convention on Human Rights, there has been uncertainty about the obligations upon a new partner of a party who is involved in matrimonial financial litigation, to disclose information about their finances. The Form E requests that very brief details of their income and capital be provided. Often the provision of the information is refused by the non-party on the basis that “what has my capital/income to do with him/her?” The answer to that question is that the Court needs to know the extent of any present or potential future contribution by the non-party to the resources of the litigant, in order to assess their needs (which is one of the factors which must be considered in every matrimonial financial case). Sometimes, in the absence of such information, a Court will draw “appropriate inferences” i.e. a Court will listen to the evidence of the party seeking the information and sometimes attribute capital or income to the other party if it is suggested that funds have been deflected to another person.Greater problems arise when one party wants more information than is disclosed in the Form E. This was the situation which arose recently in M –v- M (Third Party Subpoena: Financial Conduct).

The husband had dissipated assets by gambling and had been very obstructive in relation to disclosure of his finances generally. The husband had formed a relationship with a Mrs P to whom he transferred funds during the course of the proceedings. The Court had to balance the requirement that the parties to matrimonial financial litigation should provide full disclosure of their finances (taking into account the husband’s extensive failures in this respect) against the general rights of a non-party to privacy of their affairs, as reinforced by Article 8 of the European Convention.

The Judge considered that the following considerations were relevant:

1.How important is the information to the issues in the proceedings?

2.Has the Applicant taken appropriate steps to obtain the information within the proceedings and to enforce orders for disclosure, without success, before applying for third party disclosure?

3.Would it be sufficient for the Court to draw inferences adverse to the Respondent from the refusal to supply the information and comply with Court Orders?

4.What is the relationship between the Respondent and the third party?

5.If disclosure is necessary and proportionate, do the documents contain private information that can be protected by editing?

In the M –v- M case, the Judge was satisfied that there was a clear history of failure to provide information by the husband and a strong suspicion that he was not being frank about the transfer of funds to Mrs P. He was satisfied that the wife had done everything she could to elicit the relevant information within the proceedings from the husband. He went on to say: “Plainly any requirement by a Court to disclose personal financial information against someone who is not a party to proceedings is an interference with the individual’s right to respect for his or her privacy, and in this context, has to be justified as necessary for the protection of the rights of the Applicant”.

Whilst on its facts, this case might be seen as an extreme example of the extent to which one might have to go to get financial information, the case is nevertheless helpful to demonstrate once again that Courts expect both parties to matrimonial financial proceedings to provide full information about all of their finances.

March 2007

go to: News Contents Page