The Duty Of Disclosure In Family Law
I think my ex is hiding assets from me…
All parties are required to comply with the duty of disclosure which applies from the outset and continues until the matter is finalised. This is an ongoing obligation irrespective of whether requests are made for specific disclosure by the other side. Disclosure includes documents or information relevant to an issue in dispute. Whilst you can ask for specific documents, you can’t go on “a fishing expedition” which is often difficult to differentiate from legitimate forensic enquiry.
The duty of disclosure must be full and frank. It requires you and your former spouse to disclose all sources of earnings, interest, income, property and other financial resources as well as liabilities and debts. This applies regardless of whether they are acquired or held by you, your spouse, a third party (for example, the party’s child or new partner) or in companies, trusts and other structures. This obligation of disclosure continues after separation.
So how does one investigate the other parties compliance or rather non-compliance with disclosure obligations?
Financial Statement:
This is a mandatory document that must be filed and served whenever a party makes, or answers, an initiating application to a financial case in the family courts. It is a sworn, powerful document in ensuring full and frank disclosure has been made.
The parties also have an obligation to amend and update their Financial Statement if the circumstances have significant changed.
Inspection of documents:
If discovery of a document is made by your spouse, or a document is referred to in a Financial Statement/ Affidavit of your spouse, you can require them to make the document available. They will then be available for inspection and copies can be made for further reference.
Discovery on oath:
Are you nonetheless unsatisfied by your spouse’s disclosure on the basis of their discovery of documents by correspondence and Financial Statement? You can seek an order that they file an Affidavit of Documents. This requests them to discover all documents in issue in their custody or control, whether those documents are in their possession or not and if they are not, to explain why.
Undertaking by party:
You can also seek an order, if you feel that your spouse is really hiding something. That is, your spouse gives a written undertaking to the Court that they have a given full and frank disclosure under the Court Rules. A written undertaking is like a promise to the Court and has an effect similar to that of an order which must be complied with.
A breach of an undertaking is equivalent to a breach of a Court Order which could mean your spouse will be held in contempt of Court. This a very serious finding which could land your spouse in prison.
Subpoenas:
Your spouse is required to discover not only documents in their possession but also in their control, regardless of whether they have the documents on hand.
Sometimes, this may not be practical or efficient and so there is an alternative procedure. You can have the Court issue subpoenas to non-parties such as banks and employers who would have records relating to your former spouse. They are compelled to release these.
Answers to Specific Questions:
If you are still not satisfied with your spouse’s disclosure, you can interrogate them about issues by serving them with a notice in writing in the form of Answers to Specific Questions.
You can only make one such request and there can be no more than 20 questions asked, so you need to choose questions that are directly relevant to the issues in dispute in your case.
Your spouse will be required to produce documents relevant to the answer if not discovered previously. They can also be cross-examined in Court on their answers and the Court can draw adverse inferences from the answers given in writing and in the witness box if there is an inconsistency.
Consequences of non-disclosure
If your spouse does not disclose documents as required by the Court Rules, they may be faced with a Court Order at a later date preventing them from being able to rely on it. Worse, they may be found to be in contempt of Court and ordered to pay costs OR their case may be stopped/ dismissed by the Court.
If a settlement is negotiated and you later discovery material nondisclosure you may be able to make application to the court to set aside that settlement.
If after hearing, the court is not satisfied that a party has been full and frank in their financial disclosure, the court can make orders more generous to the other party as a way of making up for the nondisclosure.
If you require further information…
See the Family Court website
Family Court ‘Duty of Disclosure’ fact sheet
