What is duty of disclosure?
Duty of disclosure is the requirement for both parties in a family law dispute to provide each other with all the relevant information to issues in the case.
This includes physical documents, electronically stored documents, or even documents that the other party may not know about. The duty of disclosure begins with the pre-action procedures and continues until the matter is finalised.
It is important that both parties continue to disclose documents, as circumstances may change throughout a case.
Full and frank disclosure in financial cases
In financial cases, parties must disclose their total direct and indirect financial circumstances.
This can include earnings, income, property and other financial resources.
Parties must also disclose any disposal of property before and after separation, whether that be by sale, transfer or gift.
Full and frank disclosure in financial cases is often one of the most difficult steps for parties in these proceedings, however it is absolutely critical in establishing each party’s financial position and ascertaining a fair division of the asset pool.
Full and frank disclosure in parenting cases
Like financial cases, parties are required to make full and frank disclosure of all information in relation to their parenting case. This can include medical reports about a child or parent and school reports.
Any party who has obtained an expert report must also give a copy of the report to the other party.
Undertaking as to disclosure
All parties in Court proceedings must file an Undertaking as to disclosure prior to the first court date. This document states that you are aware of your duty to the Court and each other party to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner.
You must not make a statement or sign an undertaking if you know, or should reasonably know, that it is false or misleading.
If you do not comply with disclosure, fail to file an undertaking or file a false undertaking, the court may:
- Refuse to allow you to use that information or document as evidence in your case;
- Stay or dismiss all or part of your case;
- Order costs against you; or
- Fine you or imprison you on being found guilty of contempt of Court.