The jurisdiction of England and Wales is renowned for its provision for the weaker party in financial remedy proceedings ancillary to a divorce. However, what goes hand in hand with this, and what is equally important, is the emphasis judges here place on the importance of proper disclosure. As such, it is one of the fundamental principles of the family law system that there should be full and frank disclosure, and it is enshrined in the pre-action protocol (annexed to the Family Procedure Rules 2010).
That said, it is all very well for this disclosure principle to exist in the abstract, but what happens if a party does not comply with this obligation? A family law practitioner will be all too familiar with persistent chasing in correspondence for disclosure and the threatening of court applications, until finally an application for disclosure has to be made (often with penal notices attached). Sadly even a court order does not always make a persistent non-discloser disclose. This is when the powers of committal can come into play.
An order for committal is an order of last resort, i.e. it should not be used if a less draconian remedy would provide a satisfactory solution. In order to apply for committal, an order must have been breached, and that order must have had a penal note attached. The procedure for applying for committal is set out in the Family Procedure Rules 2010. Also, in May 2013 the President of the Family Division gave guidance on committal applications, mainly dealing with the presumption that committal hearings should be heard in public.
Broadly speaking, an application must be made, with a statement in support, setting out each breach and each warning. There must also be a notice to the respondent warning of the consequences of a committal order and the consequences of not attending the hearing. The application must then be personally served on the respondent, and they should have 14 days’ notice before the hearing. The burden of proof is on the applicant, and it must be proved beyond reasonable doubt that the respondent (a) has not done what he or she was ordered to do and (b) that it was in the respondent’s power to do it.
The reason for this strict procedure is due to the draconian nature of committal as a sanction, and its infringement on a person’s human rights. This is recognised in the Family Procedure Rules 2010 which enshrine that ’In all cases the Convention rights of those involved should particularly be borne in mind’.
For information on how this procedure is used in practice, see Part 2: Recent cases.