Court of Appeal confirms asset disclosure rules apply after death

Following the death of one party to a divorce or civil partnership dissolution, asset disclosure rules continue to apply, according a recent Court of Appeal decision.

The civil partnership of Carole Ainscow and Helen Roocroft was dissolved in 2009. As a successful property developer, Ainscow had provided the greater share of their income during their partnership. Based on the court’s assessment of the matrimonial asset disclosure at the time, a consent order was made awarding Roocroft £162,000. This was to be provided by way of periodical payments and instalments of around £18,000 per year over a two-year basis. Within the order, provision was made specifically so that should the periodical payments be terminated, no further claims against the deceased’s estate would occur following death; a provision that had been agreed by Roocroft.

Carole Ainscow died three years later. At this point, emerging evidence revealed she had misled the family court as to the extent of her assets due to claims large sums had been lost as a result of the 2008 property crash. In light of this new information and in order to negotiate a more generous share, Roocroft sought to overturn the original consent order.

Having died without a will, Ainscow’s estate was defended by Moya Ball – her personal representative – who had obtained the letters of administration. Varying of the consent order was refused by the lower court, citing administrative issues. The action of Roocroft was actually struck down as without merit in Chester family court with refusal of permission to appeal and an order for the estate’s costs to be paid. Barnett J stated that ‘there had certainly not been full disclosure but mere non-disclosure is insufficient: the non-disclosure must be material’.

Roocroft later instructed Irwin Mitchell – her solicitors – to prepare an appeal. Raising similar issues of non-disclosure at this time and listed for UK Supreme Court hearings were Gohil and Sharland. Both cases were decided in favour of the deceived spouse in October of 2015.

In July of this year, Roocroft’s appeal was heard with judgement having just been awarded in her favour. King LJ agreed with Roocroft’s counsel and stated that the County Court judge had “lost sight of the continuing duty of full and frank disclosure and instead became focused upon the fact that, notwithstanding that [Roocroft] was dissatisfied with the disclosure, she had […] agreed to the making of the order”.

In attempt to have the consent order varied by negotiation with Moya Ball, Roocroft will now apply to the family court (Roocroft v Ball, 2016 EWCA Civ 1009).

Irwin Mitchell have stated that in regards to considering the discovery of asset non-disclosure following the death of a party, this case is the first of its kind.

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