My ex-husband and I have recently concluded a rather nasty divorce and a settlement has been finalised at last. That said, I’ve just discovered his brother seems suddenly to have a holiday home in Barbados — even though he has had an extremely tough time of it lately. I’ve done some digging and the holiday home looks like it is owned by a company and I’m convinced that my ex-husband is a beneficial owner. If my husband was hiding assets from me in the divorce process, is there any way I can get this taken into account in our divorce settlement?
Charmaine Hast, partner at law firm Wedlake Bell, says that if you think your ex-husband has not disclosed all of his assets in your divorce, the onus would be on you to prove that he provided the funds or owns the holiday home in Barbados.
You have done well in ascertaining that it is owned by a company. You do not indicate where the company is registered. If it is registered in England, you will be able to access information regarding the shareholders from Companies House. If it is registered in Barbados, in recent times it has now become possible to conduct a search of the Corporate Affairs and Intellectual Property Office in Barbados.
To set aside your financial divorce order for fraudulent non-disclosure, you will need to satisfy a court that if a reasonable person knew about the property, he or she would not have settled the matter by consent as you have done. In addition to this, the court would have to be satisfied that it would have made a significantly different order had the court known about the holiday home at the time it approved the order.
There are exceptions to this, and the onus would be on your husband to prove the exceptions which include negligence or inadvertent non-disclosure. Depending on the value of the assets in your divorce, one would imagine that it is not easy to forget if you own a holiday home in Barbados?
It is important to bear in mind that when disclosure is made in divorce proceedings, there is a duty on each party to make a full and frank disclosure and this duty is to the court and to you. Obviously, each case is decided on the facts. If you and your husband owned several holiday homes in Barbados and your husband forgot this one, he may well succeed in stating that this was an inadvertent non-disclosure.
It is important also not to forget that it is not strictly necessary in English law for the shares to be registered in your husband’s name. If they are registered in his brother’s name, that will not necessarily be a hindrance to you succeeding in setting aside your financial order. It is possible to look at the source of the funds which enabled his brother to purchase the property, as assets can be held in the name of one party to the order of another party.
Although there is no time limit on setting aside an order because of fraudulent non-disclosure, it would be advantageous not to delay actioning matters from when you first discovered the existence of this holiday home in Barbados.
Neil Russell, partner at law firm Seddons, says people getting divorced who are engaged in financial remedy proceedings are required to provide full, frank and clear disclosure of their finances. This is an ongoing duty throughout the process.
Financial disclosure generally begins with the completion of “Form E”, the court prescribed document setting out all the financial information and documentation required from each party. In many cases, and most likely in yours, a questionnaire setting out queries arising from the other party’s Form E would have been raised by your solicitor. Each party is required to fill in the gaps and answer any further questions.
Assuming your ex-hisband as a beneficial interest in the property, if he did not reveal the holiday home “asset” this would amount to non-disclosure. However, it will be necessary to satisfy the court that the disclosure provided by your husband was materially deficient.
You state that your husband’s brother seems suddenly to have a family home in Barbados, so there may be questions about what else your ex-brother in law was — or is — holding for your ex-husband. If necessary, he may need to be included in the proceedings.
If your ex-husband has secured an advantage as a result of a fraud, it would be wrong for the court to allow him to benefit from it. Your remedy lies in making an application to the court to set aside the settlement that was reached, on the basis that new information has come to light.
If it can be shown that your husband’s non-disclosure was deliberate, the burden will fall upon him to show that the outcome of the case would not have been different. It is important to make any such application to the court as soon as possible, as delay risks forfeiting your entitlement to return to the court to reopen the order.
The value of the holiday home in Barbados will also be of importance. Certainly, more information will need to be obtained about the company that holds the property, and further questions may need to be asked of your ex-husband to see what other assets, if any, are held through the company and/or by his brother.
The timing of when the property was bought will be relevant, as the source of funds will need to be identified. For example, was there a hidden bank account from which the funds became available? If it can be shown that non-disclosure was deliberate, the burden will fall upon your ex-husband to explain himself.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
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