The Family Law Act 1975 and Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out the obligations on parties to provide full and frank financial disclosure of their financial circumstances. Parties have an ongoing obligation to provide information and documents relating to their income, property and financial resources. Having transparency regarding the financial circumstances of the other enables parties to be able to negotiate a robust settlement, and indeed, a financial settlement cannot occur if the asset pool is unknown.
What information do I need to provide?
You have an obligation to provide information and documents in relation to income, financial resources, assets, liabilities, and superannuation in which you have a legal or equitable interest.
The obligation to provide financial disclosure only extends to documents which are in your possession or control. Generally, a party is able to access documents such as bank statements, Notices of Assessments issued by the ATO, superannuation statements, etc. A party may receive a request for disclosure documents where they cannot fulfill the request. This could occur, for example, where disclosure may be sought in relation to the quantum of a distribution received from an inheritance or compensation award, when the amount may not yet be determined.
Do I need to comply with all requests?
A request for disclosure should be answered within a reasonable timeframe, subject to the request for documents being reasonable, and relating to the issues in dispute.
If you have received a request for financial disclosure which you think is unreasonable, seek legal advice.
Is it sufficient to provide information about my financial circumstances?
By agreement, parties can exchange information relating to their financial circumstances, as opposed to a formal exchange of documents. However, a party is entitled to request documents, if that remains their preference.
Can I provide disclosure of the value of my interest in property at the date of separation?
It is necessary to provide financial disclosure in relation to the current value of assets, liabilities and superannuation. Although the value of property at the time of separation may be a relevant consideration, as well as what contributions have been made by each party following separation, generally the Court requires the most up to date information about the value of assets, liabilities or superannuation, rather than adopting the values of property as at the date of separation.
Do I need to provide more information after we have participated in an exchange of financial disclosure?
The obligation to provide financial disclosure regarding your financial circumstances is an ongoing obligation. It is necessary for parties to provide updates in relation to their financial circumstances until a property settlement has been finalised, either by entering into Orders or a Binding Financial Agreement. That obligation exists irrespective of whether there has been a request for updating financial disclosure. If your financial circumstances materially change, there is an obligation to inform your former partner about that change.
What does this mean for you?
If you are uncertain about your legal obligations in relation to the provision of financial disclosure, or your former partner is refusing or delaying the provision of financial disclosure, you should seek legal advice.
It is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe