DUTY OF DISCLOSURE
In an earlier blog, I explained ways in which you can be reassured that there is a great onus on the other party to a Family Law proceeding to tell the truth regarding financial matters.
Overriding those practical considerations is the concept and Family Law Rules regarding a Duty of Disclosure.
What is a Duty of Disclosure?
A Duty of Disclosure requires all parties to a Family Law dispute to provide to the other party all information relevant to an issue in the case. This includes information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other parties may not know about. This duty starts with Pre-Action Procedures before the case and continues until the case is finalised.
The Duty of Disclosure is set out in the Family Law Rules and extends to both your direct and indirect financial circumstances. It requires disclosing all sources of earnings, interest, income, property (including property that you actually have and contingent or future interests in property) and other financial resources.
It includes property, financial resources and earnings owned by you directly or by some other person or beneficiary, for example – your child or de facto partner as well as assets held in corporations, Trust companies and other structures.
The Family Law Rules include that you need to disclose any property disposed whether by sale, transfer, assignment or gift in the year immediately prior to separation or since separation.
The Duty of Disclosure continues throughout the Family Law proceedings which mean that there is an onus on a party to continuously disclose and provide information regarding any changes to their financial circumstances. The Family Law Rules provide that if you fail to disclose, the Court may:
- Refuse to allow you to use that information or document as evidence in your case;
- Stay or dismiss all parts of your case;
- Order costs against you;
- Fine you or imprison you on being found guilty of contempt of Court for not disclosing a document.
Honesty really is the best policy. Not only do you need to comply with the Duty of Disclosure but it is really important that you understand it and work with an experienced lawyer, such as the O’Farrell Robertson McMahon Family Lawyers, to ensure that you are complying with the Duty of Disclosure and even more importantly, that everything is done to make sure that the other party is doing so as well.