One critical aspect of the divorce process is access to paperwork and records related to the case. Clients often wonder whether they have the right to see all the documents associated with their divorce and whether the opposing party’s solicitor is obligated to disclose everything. This article explores what paperwork you can request, what can be withheld, and the legal implications of non-disclosure.
What paperwork can a client access?
When going through a divorce, both parties generate a myriad of documents and records. A client may want to see:
- Court documents – This includes applications, witness statements, and court orders
- Financial disclosures – These are vital in financial remedy proceedings and include Form E (financial statements), bank statements, pension valuations, business records, and any other relevant financial disclosure evidence.
- Correspondence – Emails and letters between solicitors, as well as communication with the court
- Agreements and settlements – Any consent orders, financial settlements, or parenting agreements
- Legal advice and strategy – Documents prepared by your solicitor regarding legal strategy and case management
Your own solicitor must provide you with copies of these documents upon request, as they are acting on your behalf. If there are missing documents, you should ask your solicitor directly for them.
Are any divorce documents public?
Only the final order of divorce is a public record, all other documents relating to the divorce such as financial matters or children disputes are confidential. The final order includes the names of the parties, the date and location of the marriage, and the court that granted the divorce. You can search for a final divorce order/decree absolute using Form D440, or contact the court directly by email or letter.
It is important to understand that you cannot have a public record erased. Alongside the court, your solicitor, if you have one, will also retain information relating to your divorce file, and will have their own data storage policies that must comply with data protection legislation.
Accessing the other side’s paperwork
Many clients wonder whether they can obtain documents held by their spouse’s solicitor. The general rule is that each party is entitled to disclosure of relevant information but not necessarily access to all the opposing party’s documents. This is because most divorce documents are considered confidential and accessing them without consent could breach privacy laws.
If you need specific information from the divorce proceedings, you will need to contact the court and provide a compelling reason to access the documents, such as a dispute regarding child arrangements or financial matters.
The court does not permit parties to help themselves to the other party’s information to be used in divorce proceedings. Where confidential information is given to a lawyer by their client, the lawyer is under a duty not to look at it, or to stop doing so once it has been established that it is confidential, and return it to the document’s owner without taking copies.
Does the other side’s solicitor have to share requested documents?
Under the Family Procedure Rules 2010, there is an obligation for both parties to provide full and frank disclosure of relevant information, particularly in financial remedy proceedings. However, the opposing solicitor is not required to provide everything their client possesses. Instead, they must disclose information that is:
- Material to the case – Documents that could impact the court’s decision, such as financial statements and property valuations
- Legally required – Financial information in Form E, for example, must be disclosed under the rules of court proceedings
- Ordered by the court – If a judge mandates disclosure of specific records, they must be shared
However, personal legal advice, internal notes, and strategic communications between a solicitor and their client are protected under legal professional privilege and do not need to be disclosed.
Can the other side withhold certain information?
There are circumstances where the opposing party can withhold documents, including:
- Legal professional privilege – Communications between a client and their solicitor are confidential
- Irrelevance – If a document does not pertain to the case or is deemed immaterial, it may not be disclosed
- Confidentiality & privacy – Documents containing sensitive third-party information or privileged communications may be protected
- Without prejudice communications– Offers and negotiations made “without prejudice” to settle the case are not typically disclosable.
- Private medical records– Unless directly relevant to the case, medical records are typically considered confidential
- Third-party confidential information– Documents that contain sensitive information about third parties who are not involved in the proceedings
- Commercially sensitive information– Business records that contain trade secrets or proprietary data that do not affect the divorce case outcome
What if the other side withholds relevant information?
If your spouse or their solicitor is deliberately withholding pertinent information, there can be legal consequences:
- Contempt of court – If a court order requires disclosure and a party refuses, they may be held in contempt, which can result in fines or imprisonment
- Adverse inferences – The court can assume that withheld documents contain damaging information and rule against the party withholding them
- Costs orders – The court may order the non-disclosing party to pay the other side’s legal costs
How to enforce disclosure of information
If you suspect that relevant information is being withheld, you have several legal options:
- Solicitor’s request – Your solicitor can formally request missing information from the opposing party
- Court application – You can apply for a court order compelling disclosure
- Third-party disclosure order – If a third party (such as a bank or employer) holds relevant information, the court can order them to provide it
- Penalties for non-compliance – The court may impose sanctions, such as striking out claims or making an adverse costs order
While you are entitled to access all paperwork related to your own divorce case, gaining access to documents held by your spouse or their solicitor is more limited. Full and frank disclosure is a legal requirement, particularly in financial proceedings, and failure to disclose relevant information can lead to severe legal consequences. If you suspect that the opposing party is withholding vital information, legal remedies are available to enforce disclosure and ensure a fair outcome in your divorce case.
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