Duty of Disclosure
Both you and your former partner have a duty to the court and to each other to give full and frank disclosure of all information relevant to the case, in a timely manner.
This duty begins as soon as negotiations commence, and does not subside until the case is finalised (by way of agreement between you and your former spouse, or otherwise by order of the court).
Put simply, you and your former partner will be required to make full and frank disclosure as to your respective financial circumstances, including:
- Your earnings, and in particular your income;
- Any interest in property – including any interest in a trust, corporation (other than a public company), trust, partnership, joint venture business or other commercial activity;
- Any financial resources which you are benefiting from or which is otherwise held for your benefit;
- Any interest in a superannuation fund;
- Any property disposed of, whether by sale, transfer, assignment or gift, unless disposed of with your former partner’s consent; and
- Any liability – including any personal guarantee or loan.
Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence (for example, punishment for contempt of court).
The court considers that you should exchange the following documents, provided the documents are in your possession or under your control:
- A copy of your 3 most recent taxation returns and assessments;
- Your bank records for the 12 months ending on the date when the maintenance application was filed;
- If you receive a wage or salary payment – your 3 most recent pay slips;
- Any other document relevant to determining your income, expenses, assets, liabilities and financial resources;
- Any document about any superannuation information (including a superannuation information form or, in the case of a SMSF, a copy of the trust deed and the three most recent financial statements);
- Any relevant business activity statements for the previous 12 months;
- For any corporation which you own or control:
- A copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
A copy of the corporation’s most recent annual return that lists the directors and shareholders; and
A copy of the corporation’s constitution and any amendments;
- For any trust which you own or control:
- A copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
- A copy of the trust deed, including any amendments;
- For a partnership which you own or control:
- A copy of the financial statement for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
- A copy of the partnership agreement and any amendments;
- Unless the value is agreed, a market appraisal of the value of any item of property in which you have an interest; and
- Any other document which might be relevant to an issue in your matter
Some find difficulty in providing particular documents to their former partner, particularly where there is a breakdown of trust. Rest assured, the contents of any disclosure is to be used for the purposes of the family law proceedings only, and must not otherwise be disclosed to any other person without the court’s permission.
For more information about duty of inclosure, please contact Ramsden’s team of family lawyers in Gold Coast & Sydney on 1300 749 709.