If you have recently separated from your spouse or are involved in a divorce financial settlement, you may be wondering what documentation you need to provide for legal proceedings. Irrespective of whether you were married or in a de facto relationship, before you can finalise any property or financial settlements, both parties have a duty of disclosure to provide information relevant to the case. The documentation required will vary depending on the circumstances and unique details of the matter. However, parties must comply with their duty of disclosure to avoid costly complications and penalties.
What is the duty of disclosure?
All parties to a separation or family law settlement must provide information relevant to an issue in the case. The Family Court of Australia refers to this as “full and frank disclosure” and is essential to the family laws’ pre-action procedures rule. Parties to a family law settlement have a duty of disclosure at the beginning of the matter, and the duty continues until the case is finalised.
Financial disclosure
Full and frank disclosure in financial cases requires each party to provide information on their total direct and indirect financial circumstances. Financial disclosure applies whether the property or financial earnings are owned by the party directly or held in corporations, trusts, or other company structures. In addition, any property disposed off by sale, transfer, or gift in the 12 months prior to separation or after the separation must also be disclosed.
Disclosure in custody matters
In family law cases involving parenting matters, both parties are required to disclose any information that may be relevant when considering the care and living arrangement for the children. For example, medical or expert reports about a child or parent, school reports, letters, photographs and notes, and drawings may all be used to determine the child’s ideal care arrangement. Furthermore, both parties must provide any information about family violence or police intervention.
Do I need to provide bank statements in a divorce?
Yes, divorce laws regarding property settlement in Australia require the provision of bank statements by both parties.
The duty of disclosure for financial matters involves an exchange of documents by each party which may include:
- Bank statements for all accounts
- Income tax returns and notices of assessment
- Records and statements of any stocks or shares owned
- Evidence of earnings such as payslips, Centrelink statements, and group certificates
- Superannuation statements
- Any records of financial resources such as interest in a deceased estate, personal injury, or other insurance claims
- Any interests and information about relevant corporations, companies, trusts, or partnerships
- Documentation of any property purchased or disposed of in the 12 months prior to separation or following separation
- Evidence of any financial contributions made to the relationship, including inheritance
- Documentation concerning your health involving any illness, condition, or injury
The above list is by no means exhaustive. The Family Law Court WA has compiled an example list of discoverable documents to assist in the process of disclosure which is available here.
When to provide and receive disclosure documents
Ideally, all documentation should be gathered and exchanged during the pre-action procedures, where parties are encouraged to reach an agreement before making an application to the courts. The procedures provide a means to manage disputes and promote clear communication and disclosure between parties. Couples must comply with the pre-action procedures before making a court application.
Privacy concerns
It is natural to be concerned about the privacy of your personal and financial information. However, the only parties legally able to view your documentation are your spouse and their solicitor. The Australian Solicitors Conduct Rules prohibit the misuse of this information and the documents’ distribution to any third parties.
What if my former spouse refuses to provide financial information?
If a party fails to provide disclosure during a family law dispute, it can adversely affect their case. If your spouse refuses to provide financial information relevant to your case, you have the right to commence proceedings in the Family Court WA, where a subpoena can be issued to obtain information being withheld. The court holds the position that if a party fails to provide full and frank disclosure, then they are likely hiding financial assets or liabilities.
What are the ramifications for failure to disclose all assets in a financial statement in court proceedings?
If either party fails to disclose information after the commencement of the case in the Family Court, severe penalties can apply, including:
- A requirement to pay legal costs for the other party
- Findings of contempt of court that may involve fines and imprisonment
- The dismissal of the whole or part of their case
- Denial of the right to rely on evidence about an asset that was not disclosed prior to court proceedings
How to ensure you comply with disclosure requirements
Family law disputes can be emotionally draining and challenging to navigate. Following the pre-action procedures in separation is essential and requires full disclosure of all information relevant to your case. Failure to comply with your duty of disclosure can result in costly delays and financial penalties. If you are unsure about what documentation to provide in the disclosure process, seek a family lawyer’s assistance. At Savannah Legal, we understand that separation can be a stressful time. We will work with you to ensure both parties in your case comply with their duty of disclosure. Contact us today for a free consultation, and let us guide you to a successful settlement outcome.
