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Divorce and disclosure

A recent court ruling has blocked use of documents that have been obtained in a way that breaches confidentiality

I am in the process of getting divorced and bringing together all the information I need to disclose to the Court. How do I know my husband will fully disclose everything he has in investments and pensions?

First of all, you must fully and frankly discuss all aspects of this question with your solicitor. You need to be aware your solicitor is governed by anti-moneylaundering regulations and the Proceeds of Crime Act and if you make them or myself aware of any transactions that might appear dubious we have a duty, without informing you, to inform Government agencies.

That aside, you have a duty to the court as does your husband to disclose all relevant information. Disclosure of information regulations provides information to the member of the pension scheme in a prescribed format that needs to be disclosed to the court.

With other investments, how are you to know that your husband does not hold a bank account in a foreign country with money in it? I am afraid the answer is, you may not. Until recently, this situation was covered by the fact that if you had some form of evidence, however gained, this could be brought to the court and then the legal frame work provides for full disclosure. Unfortunately, this procedure was recently turned on its head by the Court of Appeal in its decision in 2010’s Imerman case. The circumstances for the case were extreme but it was ruled that “confidentiality” was of greater importance than the spouse’s ability to obtain and copy documents because the documents, which had been obtained perhaps improperly, could not be used in the court.

Interestingly, the judges went on to say the facts of any particular case would always be different. If, for example one party leaves what might be regarded as confidential statements around in the house, for anyone to see, their confidential nature would be lost. Unfortunately, no definition of how far a spouse can go in obtaining information was provided.

However, if there is the slightest concern that full information is not being disclosed, you must seek immediate advise from your solicitor with as much evidence as possible obtained in a way that would not be construed as breaching confidentiality.

Unfortunately, the Pension Ombudsman’s office has also stated that information normally provided for pension schemes to a court cannot be relied upon by the spouse. All pension and disclosure of information legislation provides for the member of a pension scheme to receive information concerning that pension scheme for disclosure to the court. It is unfortunate that the information has to be disclosed to the member, who then discloses that information to the court and spouse.

This information contains many important facts, such as values and how the pension scheme will deal with any pension-sharing order. What the Pension Ombudsman office states is that because none of this information is addressed to the spouse, the spouse cannot use this information as any form of contractual position and if the information subsequently changes or is found to be incorrect, the spouse has no course of action against the pension scheme.

A few pension schemes will provide basic information to the spouse but the law does not require them to. Care therefore has to be exercised upon making any final decisions and treating any pension information properly disclosed to the court as finite. Both these situations provide for a very unsatisfactory position for the spouse.

At all times, everyone involved with the court have to be aware of their duty to the court and the possible penalties of not providing full disclosure in the proper manner and full discussion with your legal advisers is the only way forward.

Richard Jacobs is principal of Richard Jacobs Pension and Trustee Services

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