Thu | Aug 17, 2017

Laws of Eve | The importance of full disclosure in matrimonial proceedings

Published:Monday | July 25, 2016 | 7:00 AM

Two local cases immediately come to mind when I consider the importance of disclosure in matrimonial property proceedings.

The first is the Supreme Court's decision in the case of Chang v Chang [2012] JMSC Civ 56. Second, the Privy Council's decision in the case of Bromfield v Bromfield [2015] UKPC 19.

In the Chang case, the court made an order for the husband to disclose information concerning properties he owned on the basis that the information would be relevant to the determination of the wife's claim to an interest in property.

In Bromfield's case, not only did the Privy Council state that there was power to order disclosure of specified documents when considering an application for maintenance. Without the disclosure, the court found that it was impossible for the judge to identify fair capital provision for the wife without any reference to the approximate size and nature of the existing assets of the husband and of herself.

Disclosure is no less important in the negotiation of the settlement of maintenance or matrimonial property claims than in the trial of these claims - because parties usually choose to compromise a claim based on their knowledge of the strengths and weaknesses of their own case, as well as the facts known to them about the other party's case.

The case of Sharland v Sharland that was mentioned in last week's article makes it clear that the consequences of a failure to disclose relevant information during matrimonial proceedings can be serious.

Although Sharland was decided in England, where there are specific rules in relation to the treatment of financial provision and property settlement agreements, the fact that the court has the jurisdiction to review those agreements is equally true in Jamaica. Both the Property (Rights of Spouses) Act and the Maintenance Act specifically state that the court has jurisdiction to enquire into any agreement made between spouses.

 

GOOD FOR EVERYONE

 

As Lady Hale said in Sharland's case, "It is in everyone's interests that matrimonial claims should be settled by agreement rather than by an adversarial battle in court. The financial resources of the family are not whittled away by the often substantial legal costs involved. The emotional resources of the family are not concentrated on conflict. The future relationship between the adult parties is not soured, or further soured, by that conflict. This is not only good for them but also for their children, whatever their ages, and for the wider family. It is for these reasons that there are processes, both within the procedures of the family court and independent of them, for helping the parties to reach agreement on the practical consequences of the breakdown of their relationship."

According to Lady Hale, when such an agreement has been reached, the court may make an order in terms of the agreement. However, the court is entitled to make further enquiries and to amend the order in fulfilling its responsibility to safeguard the interests of both parties. It is that responsibility, Lady Hale said, that is allied to the parties' duty to make full and frank disclosure of all relevant information to each other and to the court.

Three very important points were made by Lady Hale, and the evolving Jamaican case law will determine whether they are equally applicable here:

1. In family proceedings, unlike ordinary civil proceedings, the parties' agreement derives its authority from the court and not from the contract between the parties.

2. There is always a duty of disclosure in family proceedings.

3. Only a failure to disclose information that would have made a substantial difference to the court's order would lead to a refusal or reversal of a court order.

As further guidance emerges in this area, the best advice would be to err on the side of caution, and disclose all relevant information during settlement negotiations or court proceedings in order to avoid having the settlements overturned or the cases reheard.

- Sherry-Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.