The Issue of Document Disclosure in General Courts and in Family Courts — A New Model

תקציר

The article studies the tension between the general rules of civil procedure and those of the family courts. It addresses, both practically and theoretically, the application of general document discovery procedures in the family courts. The present practice, which prevents family courts from issuing orders for document disclosure and review, might cause irreparable harm to the individuals who do not control family finances and, when a dispute arises, are unable to access family documents and property. This inability of the family court to require document discovery is inconsistent with its inherent purpose and with appropriate full disclosure and transparency norms that are necessary for its proceedings. The first section of the article examines the justification of permitting family courts to deviate from the general rules of civil procedure. The second section presents problematic aspects of document discovery rules in family courts, and reservations expressed by appellate courts while interpreting them. The third section describes how family courts rebelled against the interpretation of appellate courts. The fourth section analyzes this rebellion and its extensive normative implications. The fifth section provides an in-depth review of several legal systems around the world, drawing upon them to suggest more efficient discovery procedures. These alternatives may also contribute to achieving legislative harmony with other areas of the Israeli legal system.