What is the duty of disclosure?

What is the duty of disclosure?

If you don’t provide full and frank disclosure, there are potential consequences for you. The family court could set aside any final order reached; you might have a cost order made against you; you could be found guilty of contempt of court, and worse, further penalties could be imposed.

The duty of disclosure starts with providing financial disclosure to one another from the time you first begin negotiating right through until your property settlement is finalised. It’s important to realise that you have to disclose all information and documents that are relevant to your case, and which are (or have been) in your possession or which you have the authority or ability to obtain.

This also means that you’re required to disclose changes to your income, disposal of assets by way of sale, gift or transfer of other means. You’ll also need to disclose increases in liabilities and any changes for, e.g. receipt of an inheritance.

In addition to your duty of disclosure, you’ll need to provide copies of documents relating to your financial circumstances. Both the Federal Circuit Court Rules 2001 and Family Law Rules 2004, both offer obligations to discovery. There, is general provisions and specific provisions required before court dates but initially, you’ll need to provide the following:

1. Copies of your tax returns and notices of assessments for the past three financial years
2. Copies of superannuation member statements for each superannuation interest in your name
3. If you have an interest in a self-managed superannuation fund, a copy of the trust deed for that fund and copies of the financial statements and tax returns for the funds for the past three years
4. If you have an interest in a partnership, a copy of that partnership deed and financial statements and tax returns for that partnership for the past three years
5. If you have an interest in a publicly listed company, copies of the share statements relating to each of those interests for the past 12 months
6. If you have a company which isn’t publicly listed, a copy of the company’s constitution, a copy of the financial statements for that company for the last three financial years
7. If you have an interest in a trust by way of beneficiary entitlement or are a trustee, or appointer a copy of the trust deed and copies of the financial statements and tax returns for that trust for the past 12 months
8. If you have disposed of property in the 12 months before separation or since separation, a document evidencing that disposal
9. If you receive a wage or salary payment, copies of your three most recent payslips
10. If you otherwise own or control a business, copies of the business activity statements for that business for the past 12 months
11. Copies of bank statements for each bank account held in your name or in which you have an interest for the past 12 months and
12. Copies of the bank statements for any loans

The purpose of disclosure is to enable you, and your former spouse understand each other’s financial position and to ascertain from that what each may be ultimately be entitled.

If you’re not sure whether a particular document, a circumstance of fact is relevant and requires disclosure, speak to one of our family lawyers who will be able to help.