In family proceedings, both parties have a legal duty to each other and the court to provide full disclosure of any evidence relevant to the case and upon which they intend to rely. In family cases, this is most often likely to concern financial documentation, medical information about children or the parties, professional reports, or witness statements. It may also apply to facts about a case or other relevant information.
In family proceedings, both parties have a legal duty to each other and the court to provide full disclosure of any evidence relevant to the case and upon which they intend to rely. In family cases, this is most often likely to concern financial documentation, medical information about children or the parties, professional reports, or witness statements. It may also apply to facts about a case or other relevant information.
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Parties must therefore provide the court with information about “all the circumstances of the case” and must ensure that it is correct, complete, and up-to-date. Unless a court is given evidence surrounding the matters it is required to determine, it will be unable to properly exercise its power in the way the law intends. But are you entitled to see evidence the other party has against you? We examine the law surrounding disclosure.
Sharing/disclosing evidence under the Family Procedure Rules
The Family Procedure Rules allow for disclosure/sharing of information which would otherwise be prohibited under Section 97 or Section 12. The rules allow sharing of documents and information between the parties to the case, their legal representatives, professional advisors, and other third parties involved in the case, such as child psychologists. They also allow lawyers to share documents with medical professionals or experts the court has authorised.
In court proceedings, the court will consider requests for additional information and documentation at various points in the litigation process. It will also direct what further information needs to be produced before the final hearing takes place. This means that both parties will have had plenty of time to consider the evidence each has against them and for their lawyers to take instructions on any implications.
Occasionally, parties will attempt to get evidence adduced at the very last minute before the hearing or final hearing takes place. Here, they must approach the judge and make a request for the evidence to be included in the case papers. The legal representative will be required to explain to the judge why this information was not previously available, and the strength/relevance of the evidence to the facts to be determined. The other party will be able to make representations as to why the evidence should not be included. If the judge allows the evidence into the case, they should give the affected party time to consider it, and if a solicitor or barrister is appointed, time to take instructions on the contents.
The court takes a dim view of parties trying to include last-minute evidence, and will only include it where it believes the evidence to be crucial to the case at hand.
Duty of confidentiality of evidence in family proceedings
Family proceedings are heard in private which also means that the documents and details of the case are confidential. As a reminder of this fact, most family court orders have a confidentiality warning on them to try to prevent/avoid disclosure. The repercussions from improperly disclosing information relating to a family case can be extremely serious and result in a fine or term of imprisonment.
Privileged and confidential documents
Privileged documents passing between an individual and their lawyer can be withheld from production to the court and/or a third party. They generally contain legal advice or are created for pending court proceedings. You must not view privileged documents belonging to another party in the case or pass them onto someone else. They must be returned unread to their owner as soon as possible. If you have any privileged documentation belonging to your spouse in your possession, you should send them to your lawyer in a seal envelope marked “Privileged material belonging to [insert name of spouse]” who will send them to your spouse’s solicitor.
Confidential documents typically mean any documentation relating to someone’s personal matters that others are not entitled to see. This can include financial paperwork relevant to financial negotiations or court proceedings that should be disclosed according to the duty to provide full and frank disclosure, for example. Confidential documents also include documents that have no relevance to court proceedings, such as diaries or personal correspondence. You should not take, copy, or read any documents or material belonging to your spouse.
What are the legal implications of accessing unlawfully obtained disclosure?
Unlawfully obtaining evidence can result in a civil and criminal penalty under the following legislation:
- Computer Misuse Act 1990 for the unauthorised access to information stored on a computer
- Data Protection Act 1985 for obtaining and disclosing personal data or information, or procuring the disclosure to another without consent
- Theft Act 1968 for taking property belonging to another person
- Criminal Damage Act 1971 for destroying or damaging property belonging to another.
How can my ex obtain evidence to use in court?
There are several legal ways your spouse can obtain disclosure, which, in most cases, you would be aware of via court proceedings. These are:
- Court processes, for example, by requesting disclosure in a Form E questionnaire
- A search order allowing for the search and seizure of documents without prior notice
- An order to require a third party, such as an accountant or bank, to disclose information
- An order to freeze an individual’s assets
- If you are a company director/shareholder, by attending the annual general meeting
- Making enquiries at Companies House if the disclosure relates to a limited company
- Searches at the Land Registry for property
- Looking at your financial papers and other documents that are open and freely accessible and making a note of what they see
- Asking the beneficiaries of a trust to produce copies of the trust accounts.
What they cannot do:
- Steal documents, even those in rubbish bins (read more here about copying private documents)
- Interfere with post
- Break into premises to access information
- Break into a locked cupboard, filing cabinet, or briefcase to gain access to information/documents
- Make surreptitious copies of confidential material
- Fax/email copies of documents to themselves or a third party
- Download/copy financial information from your computer
- Give copies of documents that have wrongly come into their possession to any third party, including their lawyer, unless they are in a sealed envelope.
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