What is the ‘Duty of Disclosure’ in Family Law proceedings?

What is the ‘Duty of Disclosure’ in Family Law proceedings? 8 June 2021

In all Family Law proceedings, each party has a ‘duty of disclosure’. This duty means that each party must provide the other with any and all information that might be relevant to an issue in the case. The duty is ongoing, and each party is required to update disclosure if and when their circumstances change, or when new information becomes available.

In Family Law property proceedings there are specific rules for ‘full and frank disclosure’. This duty of disclosure extends to both the direct and indirect financial circumstances of both parties.

What do I need to disclose in the ‘duty of disclosure’?

In family law property proceedings you, and any other party in the case, will be required to disclosure all of your:

  1. Income
  2. Earnings
  3. Property
  4. Debts
  5. Liabilities
  6. Any other financial resources that you may have

This includes:

  • assets that are held in your name as well as those that are jointly held with others.
  • income or earnings that do not come directly to you but go to some other beneficiary, such as a child or de facto partner.
  • property or resources held by companies, trusts or other similar structures.

You will also be required to disclose information about any property that you have disposed of, whether by sale, gift or some other disposal, in the year before your separation or since the date of separation.

duty of disclosure

What can I do if I think my ex has not disclosed all their assets or income?

If you suspect that the other party is concealing earnings or property, there are a number of steps that you can take to seek the information. This may include:

  1. issuing a request to someone’s superannuation fund, or
  2. conducting ASIC or land registry searches for property interests in the name of the person or any associated entity.

Once in Court, subpoenas can be issued to:

  • banks
  • accountants
  • the ATO
  • other similar bodies

‘Anton Pillar Orders’ can also be sought seeking that a party’s premises be searched to inspect, remove or copy documents that might be relied on as evidence in a case.

Whether a party’s non-disclosure is intentional or accidental does not matter. The duty to disclose is absolute, and if you fail to disclose the Court may stay or dismiss all or part of your case, or make a costs order against you. In extreme cases, the Court also has the power to fine you or imprison you upon you being found guilty of contempt of court.

If you are concerned about your disclosure obligations or think that your ex-partner is hiding assets or resources, Contact Us on (02) 4943 3988 to speak with one of our family lawyers. We have years of experience helping people with their family law needs throughout the Newcastle, Lake Macquarie and Hunter region.

This blog was written by Associate,
 Jessica Benson
Jessica practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates and Will disputes

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