When a marriage or de facto relationship breaks down, clients are often concerned about providing their financial disclosure to the other party in relation to family law property settlement matters. This concern usually relates to the idea that the other party could use this information against them, or not wish to disclose financial records in relation to assets or liabilities which the other party was unaware of during the marriage or de facto relationship or obtained post-separation. Any financial disclosure exchanged with the other party can only be used for the current Court proceedings. Seeking to use the information for another matter almost always requires the Court’s permission. Further, the financial disclosure must be relevant to the matter before the Court.
The reason for requesting financial disclosure is a requirement under the Family Law Rules 2004. This is often referred to as “duty of disclosure”. This duty is to the Court and the other party to provide “full and frank disclosure” of all information relevant to the case in a timely manner. Financial disclosure must be exchanged prior to any final agreement is reached, such as Consent Orders or a Financial Agreement being entered into by the parties, or before one party can file an Application to the Court. The duty of disclosure commences when parties start negotiating their settlement and remain until the matter is finalised. Therefore, if the matter was to proceed to a final hearing, then financial disclosure must be continuously disclosed to the other party until the final hearing.
The reasons for obtaining the financial disclosure is to establish the value of the property pool and financial resources of both parties. This includes all property in either joint or sole names, assets or liabilities with a third party or assets which have been disposed of since separation. The financial disclosure is then exchanged with the other party or their solicitor to ensure “full and frank disclosure” obligation has been satisfied. This ensures all parties agree upon the value of the property pool and financial resources, such as income.
If one party has not provided “full and frank disclosure” or the value of the assets and liabilities of the property pool have not been agreed upon then no agreement can be finalised between the parties. If Consent Orders or a Financial Agreement have been entered into without “full and frank disclosure” then those agreements may be set aside by the Court. If the matter was before the Court and one party refused to provide financial disclosure then they may be found to be in contempt of Court.
This article was written by Melanie Wyatt from Melanie Wyatt Family Law and co-authored with Legally Yours.
If you would like to have a complimentary phone chat with Melanie Wyatt, you can request a phone call with her via our ‘talk to lawyer’ function or head directly to Melanie’s website at www.melaniewyattfamilylaw.com.au
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.