Vicki McLynn (Partner) and Gabriella Basiuk (Associate Solicitor) in our Family Law team have written the below guide to help you understand the importance of full and frank disclosure when it comes to financial matters on divorce.
This piece explains what the duty of full and frank disclosure is, what happens if your ex fails to comply, and what steps can be taken to ensure disclosure is provided. It also explains the serious consequences that can follow from a failure to disclose, including the possibility of committal to prison and the setting aside of a final financial order that was obtained on the basis of incomplete or misleading information.
The duty of full and frank disclosure
In financial proceedings on divorce (known as ‘financial remedy’ proceedings), both you and your ex are under an ongoing duty to provide full, frank, and clear disclosure of all relevant facts, documents, and other information in respect of the case.
This duty is not a one-off obligation that is satisfied at the outset of proceedings. It continues throughout the entirety of the case, and any material changes in your financial circumstances or personal situation must be disclosed to the court and to the other party at the earliest opportunity.
The reason this duty is so fundamental is that the family court, when deciding how to distribute the relevant financial resources, must consider the income, earning capacity, property, and other financial resources which each party has or is likely to have in the foreseeable future. Without complete and accurate information from both parties, the court is simply unable to discharge that function properly.
In 2015 the Supreme Court confirmed that each party owes a duty to the court to make full and frank disclosure of their resources, and that one party cannot exempt the other from complying with that duty. Importantly, the duty is owed not only to the court but also directly to the other party. This means that your ex cannot simply agree with you to limit or waive disclosure, and any recital in a financial order purporting to do so has no legal effect.
It is also important to understand that it is not for either party to judge for themselves what is or is not relevant to the proceedings: any information which is relevant to outcome must be disclosed.
What has to be disclosed?
The scope of disclosure is very broad. It covers all material facts, documents, and information relevant to the issues in the case. This includes (but is not limited to) all bank accounts, investments (including crypto-assets), pension entitlements, property interests, business interests, debts and liabilities, income from all sources, and any potential or actual interest in a trust. It also includes information about your personal circumstances that may be relevant, such as an intention to cohabit, remarry, or form a civil partnership. The obligation also extends to information about resources you are likely to have in the foreseeable future, not merely those you currently hold.
Initial disclosure is provided within an important document (known as a ‘Form E’), which is a detailed financial statement that each party must complete and exchange. The Form E requires comprehensive information about your financial position and must be completed honestly and in full. It also includes ‘catch-all’ sections (sections 2.14 and 2.19) that require the disclosure of any resources / income sources not otherwise mentioned specifically in the other Form E sections.
Once exchanged, you and your ex (and your respective solicitors) will review each other’s Form E and supporting documents. It is at this stage that deficiencies in the other party’s disclosure will typically become apparent.
Obtaining disclosure from a non-disclosing ex
Where your ex fails to provide adequate disclosure, there are several ways to compel them to do so.
Questionnaires and schedules of deficiencies
The most common first step following the exchange of Form E documents is the preparation and service of a questionnaire. A questionnaire is a formal document in which you set out the questions you wish your ex to answer and the further documents you require them to produce. The questionnaire is served on your ex’s solicitors and, at the First Appointment hearing, the court will consider which questions and requests are reasonable and proportionate, and will make an order requiring your ex to answer those questions and provide the specified documents by a set date.
If your ex’s replies and further documents are still deficient, a schedule of deficiencies may be prepared. This document identifies specific gaps, inconsistencies, or inadequacies in the disclosure already provided. For example, if your ex has produced bank statements for only part of the relevant period, or has failed to produce their tax return or other key documents, these omissions would be identified in the schedule of deficiencies.
If your ex fails to comply with an order to answer questionnaire questions or to remedy identified deficiencies, this is a serious matter. The court has the power to draw adverse inferences against a party who fails to provide proper disclosure. This means that the court may assume the worst about the information that has been withheld. In addition, the court may make costs orders against a non-complying party, particularly where hearings have had to be adjourned or additional legal costs incurred as a result of their failure to disclose.
Orders for specific disclosure
Where a party has failed to disclose a particular document or category of documents, an application can be made to the court for an order for specific disclosure. This is a formal court order requiring the non-disclosing party to produce identified documents or categories of documents by a specified date. The application is made on notice to the other party and the court will consider whether the documents sought are relevant and proportionate to the issues in the case.
Specific disclosure orders are particularly useful where you have reason to believe that your ex holds documents that they have not produced, such as correspondence relating to a business transaction, documents evidencing a transfer of assets, or financial records that have been selectively omitted from their disclosure. If your ex fails to comply with a specific disclosure order, they will typically be in contempt of court, which carries serious consequences including the possibility of committal to prison.
Third-party disclosure orders
In some cases, the most effective way to obtain financial information is not to seek it from your ex directly, but to obtain it from a third party who holds relevant documents. This might include a bank or financial institution, an employer, HMRC, or a company in which your ex holds an interest. The court has the power to make orders requiring third parties to produce documents or provide information relevant to the proceedings.
An application for a third-party disclosure order is a significant step and the court will not make such an order automatically. In order for an application to be successful, it will need to satisfy the court on a number of important points.
First, you must demonstrate that the documents or information you are seeking from the third party are relevant to the issues in the financial remedy proceedings. The court will not make a wide-ranging or speculative order simply because you suspect that a third party may hold useful information. You must be able to identify, with reasonable precision, the documents or categories of documents you are seeking and explain why they are material to the determination of the financial issues between you and your ex.
Second, you must show that it is necessary to obtain the documents from the third party, rather than from your ex directly. If the information could reasonably be obtained by requiring your ex to produce it, the court may decline to make a third-party order and instead direct that your ex be required to provide the documents themselves. A third-party order is therefore most appropriate where your ex has failed or refused to produce documents that you have reason to believe are held by the third party, or where there is a real risk that your ex would not produce the documents accurately or completely even if ordered to do so.
Third, the court will consider whether the order sought is proportionate. This means that the scope of the order must be tailored to what is genuinely necessary for the fair resolution of the proceedings. An overly broad order that would require a third party to produce large volumes of documents of marginal relevance is unlikely to be granted. You should therefore be prepared to identify the specific documents or categories of documents you require and to explain why each category is necessary.
Fourth, the court will also want to consider the position of the third party. A third party who is not a party to the proceedings has their own interests to consider, and the court will be mindful of the burden that compliance with a disclosure order may place upon them. In practice, this means that the application should be carefully targeted and that you should be prepared to address any concerns the third party may raise about the scope or practicality of the order.
Fifth, where the third party is a financial institution such as a bank, the court will need to be satisfied that there is a proper basis for believing that the institution holds documents relevant to the proceedings. This will typically require you to provide evidence, such as bank statements or other documents already in your possession, that demonstrate a connection between the third party and the financial issues in the case.
In practical terms, a successful application for a third-party disclosure order requires careful preparation, and includes a formal application supported by a witness statement setting out the factual basis for the application which clearly identifies the documents sought, explains why they are relevant and necessary, and fully addresses the question of proportionality. The application will be served on both your ex and the third party, both of whom will have the opportunity to respond before the court determines the application.
The consequences of non-disclosure
The consequences of failing to comply with the duty of full and frank disclosure are serious and can be far-reaching. They include adverse inferences, costs orders (the non-disclosing party being ordered to pay a percentage of the other’s legal costs), and even contempt of court proceedings.
Adverse inferences
Where a party fails to provide proper disclosure, the family court has the power to draw adverse inferences against them. This means that the judge may assume, in the absence of proper evidence, that the undisclosed assets or resources are more substantial than the non-disclosing party has admitted. In practice, this can result in a financial order that is significantly less favourable to the non-disclosing party than it might otherwise have been, as the judge will proceed on the basis of its worst-case assumptions about what has been concealed.
Costs orders
A party who fails to comply with their disclosure obligations may be ordered to pay the other party’s legal costs, either in relation to specific hearings that have been wasted or adjourned as a result of the non-disclosure, or even in relation to the proceedings as a whole. Costs orders in financial remedy proceedings are not made as a matter of course, but non-disclosure is one of the circumstances in which the court is most likely to exercise its discretion to make such an order. The financial consequences of a costs order can be very significant.
Contempt of court and committal proceedings
Where a party has been ordered by the court to provide disclosure and has failed to comply with that order, they are in contempt of court. Contempt of court is a serious matter and the court has the power to impose a range of sanctions, including fines and, in the most serious cases, committal to prison. A committal application is made by the party seeking to enforce the order and requires the court to be satisfied, to the criminal standard of proof (i.e. beyond reasonable doubt), that the other party has deliberately failed to comply with the court’s order. The process is formal and the consequences are severe, but it is an important tool where an ex is persistently and deliberately refusing to comply with their disclosure obligations.
It is important to understand that a committal application is not simply a way of punishing non-compliance. Its primary purpose is to ensure compliance with the court’s order. In many cases, the prospect of a committal application is sufficient to prompt a non-disclosing party to comply.
Get in touch
Vicki McLynn, Partner in the Family Department, is an accredited specialist in high-net-worth divorce and children matters, and her breadth of experience and knowledge ensures she achieves the very best outcomes for her clients.
Gabriella Basiuk is an Associate Solicitor in the Family team. She is also the treasurer for Manchester Young Resolution (YRes) and won the Manchester YRes Rising Star of the Year award in 2025.
If you’re looking to understand more about your legal position contact one of our expert divorce and finances solicitors today on 0330 111 3131 or via our online enquiry form.