The Duty of Disclosure
Do I have to Disclose?
The answer is… Yes!
We are often asked by our clients what they must disclose in their family law matter after they have separated from their partner and what their former partner is obligated to disclose.
Both parties to a marriage or de-facto relationship are required to provide full and frank disclosure of information relevant to their financial circumstances. This means parties must provide each other with all information relevant to an issue in their case, including information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other party may not know about.
This duty of disclosure is a positive duty imposed by the Family Law Rules and the Federal Circuit Court Rules and is quite different to the obligations parties may have in a commercial dispute.
What does disclosure involve?
As part of your disclosure obligations, common documents required are those that evidence the following: –
- All income or earnings (whether paid directly to the party or not);
- Any interests in any ‘property’ or entity fully or partially owned or controlled by the party;
- All financial resources, including interests in a trust;
- Any disposal by the party that may affect, defeat or deplete a party’s claim; and
- All liabilities of the party or of any relevant entity.
‘Property’ for the purpose of a family law settlement is not just real property but is a much broader concept and means all assets, including superannuation.
When does your duty to disclose begin?
Your duty to disclose begins once you separate (with the pre-action procedures) which means before a case starts, and this duty continues until the case is finished. The duty of disclosure is an ongoing obligation and extends to all documents in your possession, power or control.
Your duty to disclose continues until your matter is finalised which means that you must continue to provide such information as your circumstances change or more documents are created or come into your possession, power or control.
What happens if a party to a case does not disclose?
There are a number of consequences which may follow if a party to a case fails to disclose, including but not limited to cost orders, and if a matter has been finalised the settlement may be re-opened if the non-disclosure resulted in a detriment to the other party.
It is important to provide disclosure in a timely matter, and to be honest and forthcoming with your disclosure documents. Non-disclosure contributes to significant delays in resolving a family law matter and significantly increases costs.
Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support. Please get in touch with us on (02) 9929 8840 or firstname.lastname@example.org
This post is an overview only and should not be considered as legal advice. If there are any matters that you would like us to advise you on, then please contact us.