Duty of Disclosure: I’ll show you mine if you show me yours

Separated couples negotiating a property settlement have obligations to provide complete disclosure of their financial circumstances.

The duty is not only to your former partner, but the duty also extends to the Court itself. Pursuant to Rule 13.04 of the Family Law Rules and Rule 24.03 of the Federal Circuit Court Rules, parties must make full and frank disclosure of their financial circumstances.

What information do I need to provide?

The type of information and documents that are typically requested by way of disclosure include, pay slips, bank statements (including credit card and mortgage statements), superannuation statements, information about any business in which that person holds an interest, including a family or discretionary trust. It is also common to request valuations or appraisals for real property, motor vehicles or businesses.

It will depend on the particular circumstances just how much information needs to be provided. Full and frank financial disclosure (or knowing what is really there) is necessary before you can properly consider an offer of settlement.

What are the risks and consequences of failing to provide disclosure?

  1. A Financial Agreement or Court Order may be set aside on the basis that the agreement was reached, or orders made, without prior knowledge of assets which had not been disclosed.

  2. Increased legal fees and delays in resolving your property settlement once the non-disclosure is identified and increased stress in being involved in litigation.

  3. The Court can make orders for costs against a party who has refused to comply with their obligations to provide full and frank financial disclosure throughout the course of Court proceedings, especially where one party has incurred additional costs, for example by issuing subpoenas to obtain documents that could have been made available by the other party.

  4. If you do not provide full and frank financial disclosure, it is difficult for your lawyer to provide you with accurate legal advice.

What should I do if my former partner is not providing disclosure?

You should seek advice from a family law specialist about how best to navigate this issue. In some cases, it may be that Court proceedings should be commenced to compel the other party to provide disclosure. Contact our office for an appointment on (02) 6225 7040 or send an enquiry to us at [email protected].