In family law, to enable a just and fair outcome for property matters, parties are required to be transparent with information of all assets in liabilities, whether current, past or future.
Providing accurate information allows the parties matter to progress in a prompt and financially considerate manner.
The duty of disclosure is now codified in law under the Family Law Act 1974 (Cth), stating that both parties are required to provide full and frank disclosure of all financial circumstances, including income, assets, liabilities, and financial resources in a timely manner.
This duty is ongoing and applies whether you reach agreement by consent or proceed to court.
Adequately exchanging disclosure is important whether you are settling your matter by way of Consent Orders or Binding Financial Agreement.
When agreeing and signing Consent Orders, parties are required to sign a declaration of truth, affirming the accuracy of the information provided in the form including their financial circumstances. Knowingly making a false statement in a Court document may result in a person being found in contempt of Court, being punishable by imprisonment or fines.
When completing a Binding Financial Agreement, parties are required to sign an acknowledgment clause that they have provided full and frank disclosure, and by falsely signing, can open a party up to having the Agreement set aside due to material non-disclosure or fraud.
Consequences of Not Exchanging Disclosure
The Court Varying or Setting aside the Agreement
The Court has the power to do so if it is later discovered that there was a failure to disclose relevant financial information. This can happen where a miscarriage of justice has resulted from non-disclosure, fraud, or suppression of evidence.
This can also occur when signing the Court documents. A false declaration that a party has no other interest in property, superannuation, or financial resources not described in the application can also be grounds for setting aside the orders.
Subjecting the Parties to Future Litigation
This can occur if parties proceed with an agreement without proper disclosure, taking the risk that the agreement may be unreliable, or set aside if non-disclosure is later discovered.
Refusal to Make an Order
The Court may refuse to make consent orders if it is not satisfied that the orders are just and equitable, particularly if there is insufficient evidence of full disclosure.
If you have separated from your partner and would like advice regarding the settlement process, please contact our firm to make an appointment with one of our family lawyers on (02) 4944 3322.
