Full and Frank Disclosure in Divorce Proceedings
It is the general duty of both parties to make full and frank disclosure of all information, especially when there is a claim for ancillary relief which includes matters relating to maintenance and division of matrimonial assets.
What is required?
An Affidavit of Assets and Means must be filed to disclose all information that is required before the courts can decide on the asset distribution. An affidavit is a signed document made on oath or affirmation and is the primary method to present evidence in court. An Affidavit of Assets and Means is only required for divorce cases.
In the affidavit, both parties must disclose the following with full supporting documentation:
- Work particulars and income
- Local and foreign assets owned
- Expenses and that of any child or dependant
- List of creditors
- Details of direct and indirect financial and non-financial contributions to the family
- Proposals on maintenance and division of matrimonial assets
- Any liabilities
Both parties must declare that they have provided the court with an exhaustive list of their assets.
Failure of full and frank disclosure
Sometimes parties may not provide full disclosure of their assets by, among other ways, undervaluing certain property, reporting a lower income or higher living expense and overstating debts. If you wish to prove that your spouse has not accurately revealed his/her assets, you can make a request for discovery. In doing so, you will need to describe the documents required and the reasons behind your request. Typically, your spouse’s income tax returns is a useful document to uncover missing gaps in the affidavit. Other documents can include credit card receipts, property deeds and bank statements.
You can also file interrogatories with the court where you can pose concise questions to your spouse, supported by valid reasons for each interrogatory. This can compel him/her to disclose hidden sources of income and other undisclosed assets that he/she is trying to hide.
Do note that the deliberate intention is not taken into account. The court only requires the necessary documents from the party in question before making a formal judgement on the case.
Upon proving that your spouse had not made full and frank disclosure, the court can call for a sanction by drawing an adverse inference against your spouse. An adverse inference is a legal inference that goes against the concerned party due to his/her silence or absence of legal evidence.
In such cases, the court may give a value to the undisclosed assets or set a higher proportion of what has been disclosed to the innocent party when dividing the matrimonial assets.