in family law proceedings, parties have the duty to disclose relevant information.
In family law cases, parties are required to make a disclosure of relevant information. Rule 13.01 of the Family Law Rules 2004 provides that there is a general duty of disclosure of information related to the case. Parties may be held in contempt for failure to disclose material information. Violation of the duty to disclose may also result in an order for costs, an imposition of fines and imprisonment.
The Family Law Rules require that parties have the duty of disclosure in the following cases:
- Divorce application;
- Application for a declaration as to the nullity of a marriage or to the validity of a marriage, divorce or annulment;
- Child support application or appeal;
- Maintenance application;
- Contravention application,;
- Small claim:
- Contempt application;
- Case that is scheduled for pre-conference;
- Application in a family law case.
The duty of disclosure includes disclosing financial circumstances
This type of disclosure applies, especially to property settlement disputes, spousal maintenance applications and child support cases. A party is required to disclose his properties, direct and indirect sources of income, and financial resources. He must also disclose all liabilities like mortgages and credit card liabilities. Interests in corporations, partnerships, and trusts must be included in the disclosure. A party must also disclose disposals of property like through sale, donation, assignment or gift.
Under the Family Law Rules, a party may be compelled to disclose and produce documents. The type of document to be produced depends on the case involved. Documents like medical records, child psychologist reports, financial papers, and expert valuer reports are vital to court hearings, hence, must be disclosed. Courts rely on the opinion of experts to help them make their decision. For parties, even if a document is detrimental to his case he must still disclose it as required by the law. Necessarily included in the duty to produce a document is allowing the other party to inspect and copy it.
Another way of getting a party to disclose material information is to serve upon him a set of specific questions. This type of disclosure is provided under Rule 13.3. The party served with the questions must answer these in an affidavit which is a sworn statement. A party who does not answer truthfully may also be held liable for perjury.
Parties must remember that the duty of disclosure starts at the pre-conference level. This means that even before the case has reached the court's parties are already required to comply with the duty to disclose in pre-action procedures.
In the case where parties have the duty to disclose relevant information, they are required to make a written undertaking which basically will state that to their own knowledge they have complied with the duty of disclosure and that they are aware that if they breach the undertaking this will result to contempt of court.
Parties must only sign this undertaking after being absolutely positive that the disclosed information is not false and misleading. It would be best to consult a lawyer before signing the undertaking.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.