Duty of disclosure in family proceedings
However adversarial family court proceedings may be, the parties have a duty not to conceal relevant information from each other or the court, as David Burrows explains… Continue reading
In family finance order proceedings following divorce or civil partnership dissolution, both parties have a duty, one to the other and to the court, to provide full disclosure of financial and other material relevant to a case. This is something all parties to family proceedings – especially their lawyers – should be well aware of.
The duty of disclosure is not so clearly, as in financial order proceedings, set out for children proceedings; though the duty to disclose applies to such proceedings and – probably – to all other family breakdown litigation such as domestic abuse and so on; but perhaps with the exception of the very few “disputed issues” (as defined by Family Procedure Rules 2010 (FPR) r 7.1(3)) which arise on divorce.
The duty is to disclose all relevant information about a case. Mostly this will be, for example, financial documents or medical information about children or their parents or other carers. It may apply also to facts about a case or other relevant information. For example, one of the cases considered below (Livesey v Jenkins) concerned the critical information – not a document to be produced at all – that a former wife planned to remarry when her financial claim was settled by agreement; but she told no-one, nor did she tell the court.
Why is this so, since the main foundation of English litigation – civil and (to an extent) criminal – is adversarial? That means that a claimant in court must prove their case to the required standard of proof and on the evidence which that claimant is able to put before the court. Parties to civil proceedings generally must disclose relevant documents as between themselves (ie not to the court); and they may not say something which is untrue if a question is asked (eg about their health in a case about damages for personal injury). That said, the idea that both parties have voluntarily to produce information adverse to their case does not tie in which the concept of adversarial litigation.
Full relevant disclosure
For financial order proceedings the classic definition of the duty to disclose all material documents and relevant information, in a case, as between parties and to the court, is defined by the House of Lords. In Livesey (formerly Jenkins) v Jenkins [1985] AC 424 at 436, [1985] FLR 813 Lord Brandon said, of the factors for the court to take into account when it makes a financial order (ie Matrimonial Causes Act 1973 (MCA 1973) s 25), that:
“the terms of [MCA 1973, s 25] are, in my opinion, of crucial importance in relation to the questions raised by this appeal. The scheme which the legislature enacted by sections 23, 24 and 25 of the Act of 1973 was a scheme under which the court would be bound, before deciding whether to exercise its powers under sections 23 and 24, and, if so, in what manner to have regard to all the circumstances of the case, including, inter alia, the particular matters specified in paragraphs (a) and (b) of section 25(1)” [now s 25(2)].
Parties must “provide the court with information about all the circumstances of the case, including, inter alia, the particular matters [specified in s 25] (emphasis added)”. They must do so “directly or indirectly, and ensure that the information provided is correct, complete and up to date”; otherwise “the court is not equipped to exercise, and cannot therefore lawfully and properly exercise, its discretion in the manner ordained by section [25(2)]”.
Lord Brandon stressed that “unless a court is provided with correct, complete and up-to-date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion” in the way s 25 intends that it should do so. And so, he said, at pp 437-438:
“It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred.”
The term “full and frank disclosure” is the expression used by Lord Brandon (and also by Lord Scarman) and used generally of the duty to the court and between parties. Lord Hailsham LC preferred “full relevant disclosure”, which may be thought more apt as a term where applied to evidence. To be admissible at all, evidence must be “relevant” to the issues in the case.
Family proceedings orders: a brief history
As Lord Brandon explained, the origin of the requirement for full disclosure derives from statute (MCA 1973 s 25); but it goes much further back than that. It can be traced to the inquisitorial role of the family courts: that the judge has a duty to inquire as to all relevant aspects of a family case in a way which is not required of a judge in conventional civil – between parties – litigation.
The relevance of full disclosure was explained by Thorpe LJ – what he called the “duty of candour” – in Burns v Burns [2004] EWCA Civ 1258, [2004] 3 FCR 263. In Burns the Court of Appeal was dealing with an application to set aside a consent order where a husband had not provided full disclosure of material factors when the parties agreed to a consent order. (Ultimately the wife’s application was refused because of her three-year delay in pursuing it.) In the course of his judgment Thorpe LJ traced the history of the family courts’ concern for full disclosure of all relevant facts, here in the context of a financial issue between formerly married parties:
“[17] … The duty of full and frank disclosure, which I will for convenience refer to as the duty of candour, was clearly established by the decision in J (PC) v J (AF) [1955] P 215 as long ago as 1955. It is perhaps surprising that it was not until the 1980s that the consequences of a subsequently discovered breach of such duty were considered by this court in the case of Robinson v Robinson (Disclosure) [1982] 1 WLR 786 (note); 4 FLR 102, CA, and then by the House of Lords in the case of Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813. The effect of these decisions is to establish clearly that if a party is in breach of the duty of candour, whether by actively presenting a false case or passively failing to reveal relevant facts and circumstances, then the court has the power to set aside the order and do justice, whether or not the order was made by consent.”
In the first of these cases J (PC) v J (AF) [1955] P 215, (18 March 1955), Sachs J (with whom the Court of Appeal agreed on the husband’s appeal) was unimpressed by the husband’s attitude to presentation of his evidence and of his disclosure to the court. He said (at 228-229):
“… it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavit of documents or by evidence on oath (not least when that evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure.”
Disclosure in a financial variation application
In Robinson v Robinson, 4 FLR 102 (CA), following the parties’ divorce in 1973 the judge ordered the husband to make periodical payments for the wife and children. In 1976, on an application by the husband for the maintenance to the wife to be suspended or reduced, the judge discharged the order for periodical payments to the wife and made an order, to which the wife consented, whereby she accepted a lump sum in full and final settlement of all her claims on the husband. In 1982 the wife applied for the orders to be set aside. Of both the 1973 and 1976 proceedings, she said, there had been misrepresentation of the husband’s financial position.
The wife’s appeal was allowed and the 1976 order set aside. Templeman LJ (sitting with Ormrod LJ and Wood J) commented (at 109):
“But the situation with which we are faced is that there is a duty in matrimonial proceedings, a duty both under the rules and by authority, that full particulars must be given by any party of income and property and, as it has been put, ‘there must be full and frank disclosure’. For my part, reading the evidence – and only that evidence which has been put in by Mr Robinson, or is uncontradicted –it does not seem that the affidavit which he swore, or the affidavit which was sworn by his accountant in 1976, amounted to full and frank disclosure of his capital or income circumstances.”
Variation of orders
From the above case examples it can be seen that the duty of candour can as well arise on a first time application for a financial order as to an application for variation of periodical payments. Variation of periodical payments is governed by MCA 1973 s 31 (“Variation, discharge etc of certain orders for financial relief”) defines the family courts’ powers to vary orders, mostly periodical payments orders (see s 31(2)(b)).
The early part of a long s 31 deals with detail of matters in relation to particular orders. The main thrust of the section is in s 31(7) which defines what the court must take into account if an order is to be varied at all:
“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates…”
Section 31(7) highlights two components to which “the court shall have regard” – ie this is mandatory – (1) “all the circumstances of the case” and (2) “any change in [the s 25(2)] matters” to which the court was “required to have regard” when the order sought to be varied was made and as emphasised by Lord Brandon in Livesey v Jenkins.
For the sake of completeness, it should be recorded that Matrimonial and Family Proceedings Act 1984 added to s 31(7) a provision which amounts to a clean-break condition (s 31(7)(a)), balance by an amendment in Family Law Act 1996 (and later alongside pension adjustment legislation) which enabled the court on a variation application to make more or less the full range of original orders, including:
“(7A) Subsection (7B) below applies where, after the dissolution of a marriage, the court—
(a)discharges periodical payments order or secured periodical payments order made in favour of a party to the marriage; or
(b)varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court.
(7B)The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of—
(a)an order for the payment of a lump sum in favour of a party to the marriage;
(b)one or more property adjustment orders in favour of a party to the marriage;
(ba)one or more pension sharing orders;
(bb)a pension compensation sharing order;…”
So, for example, where there is a periodical payments order on variation it can be reframed to provide the applicant with a lump sum, property adjustment order or a pension adjustment.
A postscript
As a postscript on the question of candour: in autumn 1981 I represented a husband on an application before Balcombe J (as he then was). The husband was a local business with modest assets. Part of the wife’s case was that we had not provided information to her when a consent order was made and which the wife wanted to overturn. Balcombe J refused the wife’s application essentially on the ground that the wife – who was represented by solicitors – had not asked for the information. She was not entitled to expect it automatically, Balcombe J said. Then along came Livesey v Jenkins which made the law so much clearer and would have entirely undercut my client’s position. After the Livesey decision I would have advised him differently.
That said, neither James Meston (as he then was) nor I referred Balcombe J to J (PC) v J (AF) (above). Had we done so I suspect my client’s position would have been much weaker, and his and my duties to the court much clearer – even before Livesey’s case.
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