The Duty of Disclosure in Family Law

This information must be disclosed on a paper document or stored some other way, such as a computer storage device.

Full and frank disclosure on family law rules

Family Court is colloquially known as “the liar’s court”. Many cases consist of allegations that one party has deliberately hidden (or failed to disclose) assets from the other party. This is commonplace in “big money” cases, where there’s much to be won or lost in the duty of full and frank disclosure or non-disclosure of assets.

Do you suspect your partner of not providing a complete declaration? If so, there are many steps you can take to ensure they are honest.

#1 Financial statement disclosure

The financial disclosure document must be filed and served once a party launches or answers an application for the case of medical reports, school reports, and financial disclosure in Family Court. This standard form is vital to the family law case, family law system, family law rules, property cases, and further particulars. The reason is, this powerful duty to disclose documents ensures a complete and honest declaration is made.

When served, examine the form(s) carefully, ask questions, and request more documentation from the party swearing said document (aka the deponent). If their circumstances change, the Family Court mandates the deponent to issue an amended Financial Statement.

#2 Document inspection

Has your spouse made a discovery of duty to disclose, or disclosure documents, or is said document(s) referenced in either an affidavit, some financial cases, or a financial statement? If so, you can (after giving your partner notice) request that they make the required particular documents, or more documents available to inspect. As document inspection is the legal right to copy their document(s), you can also make your own copies.

#3 Discovery oath

You may be unsatisfied with the duty to disclose document(s) your partner has disclosed. If you’re unhappy with their discovery of financial circumstances change documents and financial resources or financial statements, you are allowed to request an order forcing them to file an Affidavit of Documents. Under this order, your partner must discover certain documents in their possession or control. They must also explain whether or not they have custody of the necessary documents. This is referred to as a “Discovery on Oath”.

#4 Undertaking by party

Even after the Discovery on Oath, you may not be satisfied with the result. Do you suspect that your partner is still hiding information relevant to the oath? Despite giving a written undertaking to the Family Court forms proceeding stating they have provided a “full and frank disclosure”, in accordance with Court rules? A written undertaking refers to a promise made to the first court date (it is similar to an Order which must be obeyed). "Filing false undertakings is strictly punishable by law."

As such, an intentional breach of an undertaking equates to violating a Court Order. This may result in your partner being in contempt of court. This is a serious charge which can lead to jail time.

#5 Issuing a subpoena

Your partner is required to do more than discover documents in their possession. They must also discover those within their control. This rule applies even if they no longer have copies of the required document(s). However, this procedure isn’t always efficient or practical. Therefore, there’s another procedure in which you can request the Court to issue subpoenas to individuals who are not parties directly involved. These include people who can access records pertaining to your partners, such as employers and banks.

#6 Answering specific questions

If you remain unsatisfied with the duty of disclosure from your partner, you may question them about certain topics (i.e. finances, assets, records, etc.) with a written notice entitled Answers to Specific Questions.

The questions must directly relate to the dispute, as you may only ask once and have a limit of 20 questions. Based on the answers, your partner must produce relevant documents that were not previously discovered.

They may also be cross-examined in Court. If inconsistencies are found, adverse references might be made from the answers submitted in writing, to those provided in the witness box.

Consequences of non-disclosure

If you or your partner fail to comply with Court rules to produce disclose requested documents, you can face an array of consequences, such as:

• The Court can deny you permission to use the information relevant in question as evidence to bolster your case
• Halt or entirely dismiss portions of or your entire case
• Issue you with a Supreme Court Order, which forces you to pay all court order costs and other legal costs
• Give you a fine or imprison you for being found guilty of Contempt of Court. This will apply if you refuse to disclose documents or being in breach of your undertaking to issue the full duty of disclosure to the Court, and;
• Assign a specific value to your interest in any property, to determine the total asset pool of your relationship.

Examining suspected disclosure

If a lot of money is at stake, people are tempted to dispose of or hide their assets. In this case, you can hire a forensic accountant to locate these assets.

Most often, people hide assets in off-shore bank accounts, create false undertaking companies, put assets in the name of other family members, hide behind the corporate veil, or create fake debts to companies, trusts, or family members.

Summary

As this article outlines, it can be difficult even for family lawyers to ensure your partner makes full and frank disclosure. If you need legal advice dealing with disclosure obligations, disclosure applies, or financial and parenting cases of your separation, call our national legal hotline or email KMB Legal for legal advice today.