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Duty of Disclosure

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.

The process of separation can be an emotional rollercoaster, particularly when trying to negotiate the division of joint property. One of the biggest causes of stress can be not knowing how things will be divided and the uncertainty about your future.

The Family Law system in Australia encourages separated couples to reach agreement without a Judge having to make the decision for you.

There are many dispute resolution services available, as well as services offered by the Courts once proceedings have started, that are designed to help you resolve your property matter sooner rather than later.

The Family Law Act sets out the factors to be considered when determining a just and equitable division of the property of a relationship.

A good place to start is to identify and put a value on all of the assets, liabilities and the superannuation of each of you, whether in joint names or owned individually.

If you are a party to a family law dispute, dealing with the division of property, the law provides that you have a duty of disclosure.

This means that all parties to the dispute must provide the Court and each other with all financial information and other documents that may be relevant in the case.

This duty of disclosure can extend to and include information and documents that the other party knows nothing about. As long as the material is relevant to the issues in dispute it should be disclosed.

Each party is legally required to make ‘full and frank’ disclosure of their financial circumstances by exchanging information and documentation.

It may be that you have always during your relationship maintained a private share portfolio and traded on your own just to retain some independence.

Sometimes when a party senses the relationship is heading south they will open a bank account in their own name and deposit funds so that if and when a separation occurs they have some access to money.

These types of activities have to be disclosed to the other party and the Court.

Sometimes people feel hesitant about revealing information that they feel is personal and/or doesn’t shed the best light on their situation.

If there has been deliberate non-disclosure of relevant documentation, the Court generally will not hesitate to make a finding in favour of the innocent party and the credibility of the party that failed to disclose may be affected.

Any property that has been disposed of, gifted or transferred in the year prior to final separation is to be disclosed as it may be relevant in regard to the final settlement.

The relevant information and documents required to be disclosed will vary and be specific to each individual case.

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