Financial disclosure affidavits (FDAs) have become an integral part of divorce proceedings, particularly in the Gauteng High Courts. To truly understand their significance, we’ll take a journey back to the time before FDAs, explore key legal cases that led to their adoption, and examine their current role in divorce and Rule 43 applications.
The Pre-FDA Era: Unpredictability and Complexity
Before the era of Financial Disclosure Affidavits , legal practitioners often likened Rule 43 applications to playing Russian roulette. These applications, designed to provide quick relief, had become notorious for their unpredictability and the potential for unfair outcomes. This sentiment was widely shared among legal professionals who struggled with the intricacies of these applications.
One pivotal case that shed light on this issue was TS v TS in 2018. In this case, Judge Spilg highlighted the challenges of Rule 43 applications and the need for uniformity. He recognized the power of case management procedures in securing pre-hearing disclosures and called for the creation of a standardized financial disclosure form.
The Birth of the Standardized FDA
The transformation began with the case of E v E; R v R; M v M in 2019. This judgment introduced the financial disclosure form (FDA) into South African law, making it a pivotal tool in divorce and Rule 43 applications. The FDA is a comprehensive document completed under oath, accompanied by relevant supporting documentation.
The judgment emphasized the importance of full and frank financial disclosure to ensure a just resolution. It also addressed issues of relevance in affidavits, ensuring that the papers filed focused solely on pertinent matters.
Judge President’s Directive 2 of 2020: Mandating FDAs in Gauteng High Courts
The adoption of FDAs became official with Judge President’s Directive 2 of 2020. This directive mandated the use of FDAs in divorce cases where maintenance or proprietary relief is in dispute in the Gauteng High Courts, including Pretoria and Johannesburg.
According to the directive, each party must complete an FDA under oath, accompanied by supporting documentation, and exchange these documents as specified. This mandate streamlines the process, ensures that both parties have a financial snapshot early in the proceedings, and facilitates effective cross-examination during trial.
Why FDAs Matter
FDAs are more than just paperwork; they serve critical roles in divorce and Rule 43 applications:
- Standardized Format: FDAs use a standardized format, making it easier for judges to assimilate vast amounts of financial information.
- Under Oath: FDAs are completed under oath, making false disclosures subject to criminal prosecution for perjury and fraud.
- Early Snapshot: FDAs are exchanged soon after the plea, providing a financial snapshot early in the proceedings, enabling informed decisions.
- Cross-Examination: FDAs provide fertile ground for cross-examination during trial.
- Settlement Consideration: Armed with financial snapshots, litigants can better consider potential outcomes and settlement early in the process.
Current Status and Beyond
While FDAs are currently mandatory only in Gauteng High Courts, their adoption is growing in other courts through agreements between parties. They have become indispensable tools in ensuring transparency and fairness in divorce and Rule 43 applications.
As the legal landscape continues to evolve, it’s essential to stay informed and adapt to changes. For personalized guidance on FDAs and their application to your specific case, please don’t hesitate to contact Vermeulen Attorneys. We’re here to provide clarity and support in navigating the complexities of family law.