Property settlement - Disclosure

When the law talks about ‘disclosure’, this means giving or sharing information about property and finances, including debts that are owed. Disclosing information about property and finances is an important part of working out how property will be divided following separation.

When you are going through a property settlement the law says you and your ex-partner must give each other information about your property and finances. This legal requirement is known as the duty of disclosure.

You must both give each other documents that you have in your possession and documents you are able to obtain. For example, if your ex-partner asked for bank statements which you did not have in your possession you would need to get these from the bank.

Quick Answers Video: Duty of disclosure

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This information will help you to understand:

when the duty of disclosure starts and ends
what can happen if someone does not disclose financial information, and
the types of documents which may need to be disclosed.

When does the duty of disclosure start and end?

The duty of disclosure starts when you and your ex-partner first start negotiating about how property will be divided.

The duty to give each other information about finances is ongoing. This means that you and your ex-partner must keep giving each other the most up-to-date information you have about finances. You need to give updated information if your ex-partner asks for it, or if there are significant changes to your finances.

Some examples of significant changes to finances include:

buying or selling real estate,
buying or selling motor vehicles, or
getting a new credit card or loan.

The duty to keep providing up-to-date information about finances doesn’t end until you reach an agreement about how property will be divided or until your court case about property ends.

If your case goes to court, it is a good idea to provide (or request) updated disclosure before each court date. This will help when trying to reach an agreement because everyone has up-to-date information and it will also help the court keep moving your case forward.

What happens if someone fails to provide disclosure?

There are serious penalties if someone fails to disclose information about their property and finances when going through a property settlement.

The court can impose a range of penalties such as:

a fine
ordering you to pay your ex-partner’s legal costs
stopping the court case until the information is provided
refusing to hear your case
not letting you use information or a document as evidence in your case
assuming you are in a better financial position than you actually are and giving your ex-partner more property, and
in very serious cases, imprisonment.

What if I have court orders for property but my ex-partner failed to disclose information?

If you have court orders for property settlement, but your ex-partner failed to disclose information about their finances when you were working out the property settlement, in some cases the court may set aside the orders and make new orders. You should get legal advice about this situation as it is complex.

Examples of types of documents which may need to be disclosed during a property settlement

The following are some examples of the types of documents you and your ex-partner may need to disclose to each other when going through a property settlement.

Item to be disclosed	Types of documents to provide
Real estate	Certificate of Title market appraisals from real estate agents sworn valuation
Home loan	home loan statement from bank or financial institution
Money in bank accounts	bank statements
Income	payslips tax returns and notices of assessment
Government benefits	statements from Centrelink or relevant agency showing the amount you receive
Motor vehicles	vehicle license renewal notice ('rego') Redbook valuation
Credit cards	credit card statements
Superannuation	annual superannuation statement
Self-Managed Superannuation Fund	copy of trust deed most recent financial statement
Shares	CHESS Holding Statements
Private company	copy of constitution recent financial statements (showing balance sheets, profit and loss accounts, depreciation schedules and tax returns) corporation's annual return (showing directors and shareholders)
Trust	copy of trust deed recent financial statements (showing balance sheets, profit and loss accounts, depreciation schedules and tax returns)
Partnership	copy of partnership agreement recent financial statements (showing balance sheets, profit and loss accounts, depreciation schedules and tax returns)

Reviewed: 30 November 2020