DUTY OF DISCLOSURE
Your solicitor is there to assist you in your family law matter. To do so, it is not only important that you “tell everything” to your solicitor but it is also a legal requirement that you do so.
When you first meet with your solicitor and then as your matter proceeds, they may ask questions that you may deem to be personal or no one else’s business but yours. Whilst this is a normal response, it is important to understand your duty of disclosure.
You may also be requested by the other party or their solicitor to provide certain information to them such as bank statements, payslips or a child’s medical records.
You may also hear the term full and frank disclosure.
What does is my duty of disclosure and what does full and frank disclosure mean?
For both financial/property matters and parenting matters, each party to the case is required disclose all and any information relevant to the case. This is the duty of disclosure. Basically: any information that either party has or is in control of, must be provided by them.
As a party, you must continue to provide such information as circumstances change or more documents are created or come into your possession, power or control. This means the duty of disclosure is ongoing throughout your matter and it is not just limited to telling what you know at the start of your matter.
For example: At the start of your property settlement matter, you disclose how much cash you have in the bank. During the proceedings, you remember that you have a superannuation account from your first job as a teenager and it has a balance. You must tell your Solicitor so that it can be disclosed to the other party.
Your solicitor has a duty of disclosure too; if you make your solicitor aware of information that is relevant to your case, they are required to disclose it to the other party or their solicitor, or the Court. It is important to note that a solicitor is an Officer of the Court; and their first responsibility is to the Court (not the client). A solicitor cannot lie to the Court, omit from telling the other party some relevant information or withhold information deliberately from the other party even if it means you would not be happy with that.
When you provide certain documents to the Court or other party, including Affidavit, Financial Statements or an Application for Consent Orders, you are required to sign the documents and this is giving your confirmation that you have made full and frank disclosure and are not falsely deceiving anyone.
What type of information is to be disclosed for property/financial settlements?
Generally the following documents and/or information is will requested:
- Payslip/income statements;
- Bank account statements;
- Taxation returns;
- Superannuation statements;
- Valuations and appraisals of assets;
- Details of any financial resources and supporting documentation;
- Details or interests in any company and/or trust and supporting documentation;
- Details of assets disposed of leading up to separation and since separation;
- Details of assets and debts;
- Details of trusts and businesses.
There are a few important things to note about financial disclosure:
- Both parties have the same duty of disclosure, so what you (or your solicitor) request from the other party, you will have to provide to them;
- The above list is not exhaustive and depends on the specific case;
- Information can be required not only for you, but for any joint interests you have with a new partner, your parents or family, or even a business partner.
- The Court can make an Order for either party to provide information and either party can file a subpoena with the Court for a third-party to provide information.
- Your solicitor is bound by professional rules of conduct and has the right to stop representing you if they know, or reasonably suspect, you are not being honest about your disclosure.
For example: Two days after Bill and Jane separate, Bill sells a car and boat and puts the money in his parent’s bank account; he would need to disclose this. Jane’s grandmother dies a year after separation and Jane inherits $100,000, and the financial settlement with Bill has not been finalised; Jane would need to disclose this inheritance.