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Is there a Duty of Disclosure?

What is the Duty of Disclosure?

Both parties to a marriage or de-facto relationship have a positive duty to provide full and frank disclosure of information relevant to an issue in their case.

This means that you must disclose information relevant to your financial circumstances with your former partner, whether that information is recorded in a paper document or stored by some other means such as a computer storage device. You must also disclose documents that your former partner may not know about.

Disclosure helps you, your lawyer and the Court gain an understanding of what makes up the net asset pool. Full and frank disclosure also ensures transparency between the parties as to their financial circumstances meaning that if you decide to come to an agreement with your former partner, you are able to make an informed decision and fully understand the effect of the agreement reached.

When does your duty to disclose begin?

The duty of disclosure starts with the pre-action procedure before your case starts and continues until your case is finalised, whether through agreement with your former partner or through a decision from the court.

You must continue to provide such information as circumstances change or more documents are created or come into your possession, power or control.

What does disclosure involve?

As part of your disclosure obligations, common documents required are those that evidence the following:

1. All income or earnings (whether paid directly to you or not);
2. Any interests in any ‘property’ or entity fully or partially owned or controlled by you;
3. All financial resources, including interests you hold in a trust;
4. Any disposal of property whether by sale, transfer, assignment or gift that may affect, defeat or deplete a party’s claim; and
5. All liabilities of you or of any relevant entity.

‘Property’ for the purpose of a family law settlement is not just real property but includes all assets, including superannuation.

What happens if you do not disclose?

If you fail to meet your disclosure obligations, a costs order may be made against you for unreasonably delaying proceedings and if your matter has finalised, your settlement can be re-opened if your non-disclosure resulted in a detriment to the other party.

Failing to disclose in a timely, honest and forthcoming manner can lead to significant delay in resolving your family law dispute and can substantially increase costs.

Contact Chatswood Family Lawyers today for help

Regardless of whether you are preparing to file for family law or divorce proceedings or your ex-spouse has already initiated family law or divorce proceedings against you, trust the skilled Family Law and Divorce Lawyers of Chatswood Family Lawyers for help. We strive diligently to ensure your legal interests are protected and goals achieved during a divorce. Contact our office today by calling (02) 9412 4500, online or by email at enquiries@chatswoodfamilylawyers.com.au to learn how we can help you through this difficult time.