What does it mean to have a duty of disclosure?
Once you and your ex-partner decide to settle your family law matters, you are both obligated to provide full and frank disclosure of your financial circumstances to each other. This process is usually overwhelming and uncomfortable for parties, especially if they have been separated for some time, however, this process ensures that the property pool available to be divided is accurately identified and fairly split.
What does the duty cover?
In property and parenting matters (or both), you and your ex-partner must provide disclosure of all direct financial resources that are in your name separately or jointly with your ex-partner, your new partner, friends or family members. Indirect financial resources are also required to be disclosed, such as your income going to another person, or held in corporations, trusts, companies or superannuation funds.
This can include bank statements, superannuation statements, trust deeds, personal and company tax returns, Centrelink payments, payslips, loan documents or anything else relevant to ascertaining your financial standing.
1. Property Matters
In property matters, the duty covers any source of revenue (or potential source of revenue) or liability that you acquired during or immediately after the relationship. This includes income, assets, shares and any other financial resources. It also includes finances that you have an interest in like a trust or current deceased estate or a property that you may have an equitable interest in (even if you are not on the title). You must also disclose any property sales, transfers, assignments or gifts that were made by you in the year before (or since) you and your partner separated as well as any liabilities you may have.
If you have made specific contributions such as payment of the deposit of a home, you may also wish to locate those documents and disclose them to verify the contribution you have made.
2. Parenting Matters
In parenting matters, disclosure includes parenting expenses, medical reports, school and extra-curricular fees and reports, birth certificates and Centrelink benefits.
What if I don’t disclose something?
It is important to remember that the duty to disclose is an ongoing obligation, only ending when your matter is finalised through a Binding Financial Agreement, Consent Orders or Court Orders. This means that if documents that were previously disclosed become outdated or new documents arise, these must be disclosed as soon as possible. Quite simply, if you don’t disclose it, you cannot protect it.
A failure to provide disclosure might lead to the other party filing a Court Application to compel you to produce the document/s in question. Continued refusal during Court Proceedings may then result in cost orders being made against you, or in some cases, fines or imprisonment.
Where can I receive further advice?
Disclosure can sometimes be a complex area and it can be difficult to understand what your obligations are. If you are unsure of what you should disclose or what you should request the other party disclose, you can get in touch with our family law team who can help you understand your disclosure obligations and discuss your next steps.
Call us on (07) 3211 2233 or fill in the enquiry form below and we’ll be in touch.
by Lucy Agnew and Stacey Ward