What is duty of disclosure and why is it required?
The duty of disclosure in Family Law is the obligation that an individual has to the best of their knowledge to be transparent to the other party involved in a matter about their circumstances. More specifically, the duty to disclose applies to both financial and parenting matters. This involves disclosing all information and documents which are relevant to the issues that are in dispute between the parties, including any information that the other party involved may not already be aware of. The information that is to be disclosed includes anything that is in writing as well as electronic forms. You must ensure that you disclose information prior to the case commencing and during the pre-action procedures such as mediation and the duty to disclose remains until your matter has reached a resolution. The duty to disclose also includes any new information such as change of circumstances which may occur during the period of your matter.
Duty to disclose – Financial matters – What documents are required?
The documents that are required to be disclosed here are things such as tax returns as they get completed, pay slips, bank statements (including statements relating to property such as mortgage statements), information relating to sale of property and trusts. You are required to produce any relevant documents that relate to your finances including all earnings and debts which you may have accrued. In addition to this, if you are a business owner you may be required to disclose finances relating to your company or business. If your financial circumstances change in any way you are required to disclose this as soon as possible.
Are there any consequences for avoiding the duty to disclose?
Yes, it is important to note that should you ignore, fail or provide false information relating to your duty to disclose, the court may impose penalties.
The penalties which may be imposed against you include dismissal or part dismissal of your case, costs order against you, fines or imprisonment for failing to disclose and the court may refuse to allow the information you have provided as evidence to be used in your case.
Yashodi Alvarez, Law Student