Financial disclosure in family law: what you need to share

James Judge

1 day ago

3 min read

A man writing on a clipboard as he looks over his brick suburban home in the late afternoon sun.

If you're separating and dividing property, you both need to put your finances on the table. Family law calls this the duty of disclosure.

Here's what the duty covers, when it starts and how it works if you're sorting out property through mediation. This is general information about the process, not legal advice.

What is the duty of disclosure in family law?

Each of you must give the other full and frank disclosure of everything relevant to your financial and property matters. You also have to do it in a timely way.

That includes things the other person may not know about. It covers information you know and documents you have, or have had, in your possession or control.

For married couples, the duty is in section 71B of the Family Law Act 1975 (Cth). For de facto couples, it's section 90RI. Family dispute resolution practitioners and lawyers must explain the duty to you and encourage you to comply.

When does the duty of disclosure start?

It starts before any court case. The Act applies it to separated couples who are preparing for a property case. The Federal Circuit and Family Court of Australia's pre-action procedures also require you to exchange relevant documents, as far as practicable, before you file.

If a case starts, the duty continues until the case is finalised. When your circumstances change, you need to update what you've shared.

What do you need to disclose?

The court describes it as your "total direct and indirect financial circumstances". That includes:

All your earnings, interest and income.
Property, including any future or conditional interest in property.
Superannuation, debts and other financial resources.
Earnings and assets that go to another person, or sit in a company, trust or similar structure.
Any sale, transfer or gift of property in the year before you separated, or since, that could reduce what's available to divide.

In practice, I ask each person for documents such as property appraisals, bank balances, super statements, mortgage payout figures and loan balances. If you own a business, I'll need its last two years of financial statements and tax returns.

What happens if someone doesn't disclose?

The Act lists what a court can do. It can take the failure into account when dividing property, order costs against the person or make orders for disclosure. It can also punish contempt. It can even stay or dismiss all or part of the case.

The court's own guidance adds that it may refuse to let a party use undisclosed information as evidence.

Property orders can also be set aside later if a failure to disclose relevant information caused a miscarriage of justice. That's section 79A, and it includes orders made by consent. So full disclosure protects your agreement too.

How does disclosure work in property mediation?

Mediation works best when you're both negotiating from the same figures. That's why disclosure comes before any discussion about who keeps what.

At your mediation consultation, I give you a checklist of what to gather. It explains the duty of disclosure and how to value each type of asset.

Once I've met with you both and confirmed mediation is suitable, I send you a property balance sheet. You each add your own figures, so we can see where you agree and where your values differ. I then bring both sets of figures together for the mediation.

I also encourage you to get legal advice from a family lawyer before the mediation.

Common questions about financial disclosure

Is superannuation included in financial disclosure?

Yes. List every fund each of you holds, however small. For a defined benefit fund, the fund itself calculates a family law value.

What if my ex won't disclose their finances?

A mediator can't make anyone produce documents. If a court case is filed, the court can order disclosure. A family lawyer can advise you on your options.

How up to date do my financial documents need to be?

Use current values. Superannuation statements should ideally be less than three months old. That avoids delays if your agreement later becomes consent orders.