Disclosure: What is it it and how can it help a smooth separation?

Disclosure is a critical part of your separation and property settlement process, yet so few people understand what they need to do. TGB senior associate Renee O’Callaghan provides this easy disclosure guide.

Firstly, it’s important you get a lawyer who can guide you through the tricky process of disclosure. Going it alone will only cost you time, money and stress. If you follow our guide, and your lawyer’s advice, you will fulfill your disclosure agreements whilst keeping costs and stress levels down.

What is disclosure?

At the beginning of a matrimonial dispute regard ing the division of property, it is required that the parties produce all documents relevant to their case and the issues in dispute.

Disclosure files allow lawyers to assess and determine an appropriate settlement for their client. Failing to provide the documents makes it very difficult for your lawyer to find out what is in the asset pool and the net value associated with the pool.  This is integral to the progression of your case because if the net value is modest, you may wish to discuss other avenues to resolve property settlement with your lawyer as opposed to litigating the matter through court, which can be expensive.

Costs and penalties for failure to comply with Duty of Disclosure

In my experience, I have found many clients do not understand their disclosure obligations. This lack of understanding can be costly, as your lawyer will be spending paid hours chasing up any missing documents and completing the disclosure file. It can also take a number of days to receive necessary information and this will further delay any progress.

Failure to comply with the Duty of Disclosure can lead to Court-issued penalties including:

• Refusal to allow you to use that information or document as evidence in your case;
• Stay or dismiss all or part of your case;
• Order costs against you or;
• Fine or imprisonment on being found guilty of contempt of court for not disclosing the document or for breaching your undertaking.

What documents do I need to disclose?

After your first visit with your lawyer, “disclosure” will become a familiar phrase.  You will generally be asked after the first appointment, if not prior to your first appointment, to provide your lawyer with a series of documents including:

• Bank, mortgage and credit card statements, since the date of separation;
• Pay slips for the past six months;
• Most recent superannuation statement;
• Taxation returns and notices of assessment for the past three financial years;
• Redbook valuations of any motor vehicles;
• Three appraisals of any real estate;
• Evidence of assets at cohabitation, if any;
• Evidence of any inheritance, gift or compensation payment;
• Evidence of any assets disposed of since separation, and;
• File containing household expenses and accounts.

Depending upon your circumstances other relevant documents may also be requested. For example, in cases involving children, medical and school reports may be required. This is another reason why consulting an experienced family lawyer is important, as they can tell you which documents are needed.

How should I provide disclosure to my lawyer?

The best way to provide disclosure to your lawyer is to provide copies of the documents in an A4 file with each copy in separate plastic sleeves. Put an index at the front of the file.

You must also keep a complete copy of the disclosure that you provided.

The duty of disclosure requires parties to disclose the original documents if required, not just copies. A party should have the original documents available for inspection.

Common mistakes clients make in disclosure

Complying with the duty of disclosure can be costly. Again, each case is different, and the actual form of disclosure will change from case to case. These are some of the basic mistakes to avoid.

• Do not provide disclosure in a piece-meal fashion. It is always more cost effective to gather all your documents together and give them to your lawyer at one time;
• Do not provide disclosure in a disorganised manner. It is going to be very expensive if you just provide a big box of random documents to your lawyer. They will have to sort out the mess and pass on the cost to you;
• Do not provide disclosure by e-mail. Although convenient, doing this will increase your costs because the e-mails have to be printed and organised.

When will I need to disclose my documents?

There is no time period imposed on providing your disclosure documents, unless an Order has been made by the Family Court.  However, the sooner you provide your disclosure, the faster and cheaper the progress of your matter will be.

Want more information?

Fulfilling your Duty of Disclosure is no simple task and it can be overwhelming. However, by listening to your lawyer, and following our rules and tips, you will keep costs down, stress at bay and maximize the size of your asset pool. Tindall Gask Bentley’s family law team are property settlement experts, and can help with all of your family law needs. Book an appointment today at your nearest TGB office or register your details here and we’ll be in touch shortly.