Disclosure

Pursuant to the Family Law Act 1975 (‘The Act’) there are specific pre-action procedures and rules which place an obligation on parties to provide full and frank disclosure of their financial positions in property matters.

The obligation of financial disclosure is an important step to ensure that each party is aware of the other’s financial circumstances. As such, exchanging documentation which evidences both parties’ financial positions is an important step in working out the property available to be divided and negotiating a settlement.

The duty of disclosure is an ongoing duty that continues until the Family Law matter is resolved. The duty requires parties to advise the other if their circumstances change, should they dispose of any property or come into the possession, power or control of any further assets or liabilities.

The duty to provide disclosure is not only in relation to information that is requested by the other party but extends to all information and documents relevant to an issue in the case.

Documents and information to be disclosed

The usual documents exchanged by parties in a property matter include the following:

1. A list of assets, detailing income and liabilities, including any property owned by either party inside or outside of Australia, either in their sole name or jointly with others.

2. Three most recent Income Tax Returns and Notices of Assessment.

3. Three most recent payslips.

4. Copies of any bank statements (savings, mortgage, loan accounts etc) for the period 12 months prior to separation to present, for all accounts held either in their sole name or jointly with others.

5. Copies of credit card statements for each credit card held either in the party’s sole name or jointly with others, for the period 12 months prior to separation to present.

6. Superannuation:

• A copy of the superannuation statements from the date of separation to present;
• For self-managed superannuation funds, the Trust Deed and the last three Financial Statements.

7. A recent life insurance or other insurance policy statement.

8. Details of any motor vehicle(s) including make, model and registration number along with a valuation, such as RedBook.

9. Documents evidencing any interest held in any Company, Trust, Partnership or Business:

• Financial Statements (including Balance Sheets, Profit & Loss accounts for the last three years);
• Depreciation schedules, Tax returns and Business Activity Statements for the last three financial years;
• Any Company Constitutions or Deeds of Amendment;
• Any Trust Deeds.

10. A recent statement for any shares owned either in the party’s sole name or jointly with any other person.

11. Disclosure as to any financial resources or entitlements held including personal injury claims, long service leave entitlements, redundancy payouts etc.

Penalties for failing to disclose

There are serious penalties for failing to provide full and frank disclosure or for giving misleading or false information including:

1. The Court may refuse to allow a party to rely upon any information or documentation not previously disclosed as evidence in their case.
2. The Court may stay or dismiss all or part of the case.
3. The Court may make a costs order against a non-disclosing party.
4. There may be potential for any Orders made by the Court to be challenged in the future.
5. In serious cases, fines or imprisonment if a party is found guilty of contempt of Court.
6. The Court may award the non-disclosing party less of the available property pool. 

If you have any further queries in relation to the duty of disclosure and the avenues available to investigate the financial interests of your former partner, please do not hesitate to contact our family law team.