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Duty of Disclosure

In the Family Court of Australia, each party to a property case has a duty to make full and frank financial disclosure of all relevant matters surrounding their financial circumstances. The same duty is applied to married couples as it is to those in a De Facto relationship.

The Court takes this duty very seriously. If there has been significant non-disclosure by one party, the Court may alter the percentage spilt of the matrimonial asset pool against the non-disclosing party to ensure the non-offending party is not disadvantaged.

In BLACK v KELLNER (1992) 15 Fam LR 343, prior to entering into the relationship the Wife owned a house and the Husband operated a practice as a chiropractor. It was a relatively short marriage of 3.5 years. During the proceedings the Husband failed to disclose accurately his financial position and income, consequently the trial judge was unable to ascertain the extent of the husband’s assets or income. The Trial Judge awarded the husband $40,000 by way of property settlement, representing 6.3% of the agreed value of the wife’s property. The Husband appealed the decision however the Full Court found that in the circumstances the Trial Judge’s decision was just and equitable.

Black v Kellner was again approved by the Full Court and followed in Weir v Weir (1992) 16 Fam LR 154.

The above cases highlight how seriously the Court takes the parties’ duty to provide full and frank disclosure of their financial circumstances. Failure to provide full disclosure can lead to a significant shift in the split of the asset pool away from the offending party.

 

 

 

 

 

By Nicholes Family Lawyers

 

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