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The “Tell All” Duty of disclosure in family law property matters

A common concern following the breakdown of a relationship is that one party may be attempting to hide assets available for distribution or their earnings and/ or income. This is often the case where one party has been the primary breadwinner and responsible for the family finances while the other party has been the primary home maker.

Under the Family Law Rules 2004 however, there is a duty of disclosure which requires all parties to provide the Court and each other with all information and documentation relevant to an issue in the case.

This duty of disclosure starts at the commencement of a matter and continues until the case is finalised. Each party is therefore required to continue to provide information and documents to each other as circumstances change or more documents are created or come into their possession, power or control.

The obligation for disclosure in relation to property matters requires parties to provide the following information to each other and the Court by way of full and frank disclosure:

  • All sources of earnings;
  • Financial interests;
  • Income;
  • Property;
  • Other financial resources; and
  • Property disposal (for example the sale, transfer, assignment or gift of property)

Parties involved in litigation are also required to complete a sworn Financial Statement which provides a summary of the above information.

There are serious implications if a party does not comply with their duty of disclosure. In the event that a party fails to comply with their duty of disclose the Court may:

  • Stay or dismiss all or part of the non- compliant party’s Application;
  • Order costs against the non-compliant party; and
  • Assume and assign a value to the non-compliant party’s interest in any property in which they hold an interest so as to determine the net asset pool of the relationship.

It is extremely important that parties understand their ongoing obligations of disclosure during a property settlement and comply with all requests made of them to ensure that their Application is not adversely affected noting the serious implications which can follow if non-disclosure is proven.

 

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