The majority of our work at The Divorce Surgery involves assisting couples with negotiating a fair and amicable settlement of their finances. Many couples are surprised that even when seeking advice from The Divorce Surgery on the likely outcome of their financial settlement, we require much of the same level of financial disclosure as would be required if pursuing a negotiated settlement through solicitors and/or the court process.
Why Is This The Case?
When financial remedy proceedings are commenced, each party is required to separately fill in a form called Form E. This is a form which includes disclosure of all your financial assets, even those you may not consider to be matrimonial assets. In summary, it is necessary to determine the size of the matrimonial ‘pot’ before it can be determined how it should be shared between the parties.
In much the same way as a court needs full and frank disclosure to make an informed decision on what is a fair settlement, we ask you to complete the Form E so that the barrister advising you has a full understanding of the financial circumstances surrounding your case, in order to give an informed assessment of what is likely to be considered a realistic outcome for you and your partner.
It also gives you both the reassurance that you have both provided full and frank disclosure. The Form E is an ‘open’ document, which means that it can later be disclosed in court proceedings if it is alleged that one of you has lied about the extent of your assets. By signing the document you are confirming not only to each other, but also to the court, that your financial disclosure is true, complete, and accurate.
A word of warning: the Form E can appear rather daunting at first glance.
However, don’t panic! It is a relatively self-explanatory document. Whilst it may require a good deal of time to fill in, it isn’t complex by any means.
To Summarise The Structure & Contents Of The Form:
Section 1: There is an opening section which gathers information about you, your children and your living arrangements;
Section 2: There is a section for financial information. This includes:
- Information concerning the family home and any other property assets (together with details of any outstanding mortgage and estimated costs of sale);
- Details of any bank accounts, savings and investments; monies owed to you; insurance policies; high values of cash, and personal belongings;
- Details about any liabilities, bank loans, credit cards and any CGT payable on the disposal of any personal assets;
- Details of business interests;
- Details of pensions;
- Information of share options, trust interests, and any assets held by third parties;
- Income information from employment, self-employment, pensions or any other sources.
Section 3: Information on the income and capital needs and the needs of any children living with you.
Section 4: An opportunity to declare any significant information or changes likely to occur relating to your finances.
Section 5: An opportunity to highlight the relevant issues you think the court must take into account when deciding how to divide up finances.
There are some notable differences however with how we approach the financial disclosure process:
- Whilst we use the standard government’s Form E for convenience, you are welcome to fill it in jointly or individually. As long as we have a full understanding of the financial situation of you individually as well as a couple that is all that we require. You must each sign your Form E to confirm it represents full and frank disclosure of all your financial resources.
- You do not need to provide much of the supporting evidence that would ordinarily be required with Form E. For example, we do not need to see 12 months’ worth of bank statements; balances as at the date of filling the form are more than enough. There will be some exhibits we will need, for instance tax returns, trust documents or company accounts, but we will create a bespoke list for you after the Introductory Sessions.
- When you complete the Form E as part of The Divorce Surgery’s process, section 1 and 2 are drafted on one form and sections 3, 4 and 5 on another separate form. The reason for this is that the form comprising of sections 1 and 2 will be considered an ‘open document.’ This means that it is a document that could be put before the court as evidence of your stated financial position if your matter did end up in court. The separate form with sections 3 to 5 is marked ‘privileged’ This means that it will not be looked at by a court in deciding the outcome of your case. It allows you to state your case in this latter form (e.g. your income and capital needs, factors the court must take into account etc.) to us without having to commit to a position openly. We find this encourages couples to make compromises and be realistic in what they are seeking, without feeling pressurised to over-state their case to the court.
- We frequently find that barristers ask follow-up questions when preparing for your Advice Session so we will be in touch to clarify any further information that may be required.