Divorce – Your Duty to Disclose under Family Law

If you are subject to a duty to disclose in a family law dispute, which includes separation and divorce, it’s important that you seek specific legal advice from a specialised family lawyer or divorce attorney about your duties and responsibilities – failure to comply may attract penalties that include fines or imprisonment!

Australia’s family law legislation has developed to promote efficient court processes. The duty to disclose is one of the principles that facilitate this, and it means that each party involved in a family law dispute, including divorce, must disclose relevant information that may affect the fairness and outcome of the case, particularly in relation to parenting and financial matters. 

The duty to disclose is not a one-off responsibility; the duty starts with any pre-action proceedings and will continue until the matter has been finalised. This means that all parties shall be required to provide updated information throughout the process as circumstances change or more information comes into your possession. 

The duty to disclose is a key component to ensuring a fair trial as the disclosed information may be crucial to highlighting the main issues to be resolved, as well as to establish each party’s position in relation to parenting and financial matters allowing for the most reasonable and fair outcome after a divorce is finalised.

As a party, you must continue to provide such information as circumstances change or more documents come into your possession, even if this is information that is not known to the other party. It also doesn’t matter what format the information is in as long as it’s relevant (e.g. in paper or electronic format).

To ensure that all parties are complying with their responsibilities and adequately fulfilling their duty to disclose, each party will be required to file an undertaking with the court wherein you declare that:

  • You have read the applicable legislation (Rules 13.1 and 13.2 of the Family Law Rules); 
  • You are aware of and understand your duty to the court and the other parties; 
  • You undertake to give full and frank disclosure of all relevant information in a timely manner; and
  • You acknowledge and understand that a breach of this undertaking may be regarded as contempt of court and attract penalties.

Your family lawyer / divorce attorney will be able to explain your responsibilities and duties to ensure that you can comply with the undertaking and to make the required filing with the courts before you have to appear before the judge. Your solicitor will also be able to explain what sort of information may be required.

If you have any legal questions about your duty to disclose documents, contact a specialised divorce attorney or a firm with family law expertise for sound legal advice.

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