Duty of Disclosure: “Show and Tell” not “Hide and Seek”

Have you decided to separate and are now dealing with the complexity of a property settlement? Often one of the more difficult issues of separating parties is working out the division of the assets and liabilities accumulated before, during and after the end of the relationship.

Hiding or not disclosing your true financial position can come with financial and legal consequences. Separated couples negotiating a property settlement have legal obligations to provide complete disclosure of their true financial circumstances.

Related Article: Property Settlement and Divorce: Key Facts You Need To Know

What is your Duty of Disclosure?

Duty of disclosure requires all parties in family law proceedings are to make “full and frank” financial disclosure to each other and to the Court.

This includes information and documents that the other parties may not know about.

You are obligated under the Family Law Rules to make financial disclosure no matter whether the property, financial resources or earnings are owned by you, come to you directly, or go to some other person or beneficiary. This includes interest you hold jointly with any other person.

This duty starts with the pre-action procedure before the case starts and continues until the case is finalised.

As a party, you must continue to provide information and documents as circumstances change or more documents are created or come into your possession, power or control.

Information and Documents

Both parties are required to provide “full and frank financial disclosure”. This means all information and documents that you control or hold that provide evidence of your financial position and net worth.

The types of documents required included but are not limited to:

• Pay slip/income statements
• Bank account statements
• Taxation returns
• Superannuation statements
• Valuations and appraisals of assets; business holdings, investment holdings, real property, vehicles and watercrafts
• Details of any financial resources including child support, trusts or other payments
• Winnings, inheritances, compensation, payouts or claims
• Details or interests in any company and/or trust and supporting documentation;
• Details of assets disposed of leading up to separation and since separation
• Other assets in your control or possession
• Debts and liabilities.

Note, the disclosure required in any case can be broad and the extent of disclosure required in each case will depend on the specific circumstances of the case.

Failure and Consequences of Non-Disclosure

There are consequences to parties in the event they fail to provide disclosure or they provide false undertakings that they have made full and frank disclosure when in fact they have not or they have provided deceiving information to the court.

The Court may:

• Refuse to give you permission to use that information or document as evidence in your case
• Stay or dismiss all or part of your case
• Order costs against you
• Fine or imprison you on being found guilty of contempt of Court for not disclosing the document or for breaching your undertaking to provide disclosure to the Court
• Assume and assign a value to your interest in any property in which you have an interest so as to determine the asset pool of the relationship.

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au