Full and Frank Disclosure: The Duty That Shapes Property Settlements

Full and frank disclosure means you hand over everything about your finances, honestly, and keep updating it until the matter ends. Since 10 June 2025 the duty sits in the Family Law Act itself: section 71B for married couples, section 90RI for de facto. Hide something material and a court can set your orders aside later.

The duty moved house and most men missed it

Disclosure used to feel like procedure. It lived mainly in the court rules (Chapter 6 of the Federal Circuit and Family Court rules), which meant it read like something your lawyer handled while you got on with running the business.

That changed on 10 June 2025. The obligation is now written into the primary legislation, and your lawyer and any dispute resolution practitioner you use has a matching obligation to tell you about it. So the old defence, "nobody explained it to me", is dead on arrival.

The duty is also ongoing. It does not end when you send the first bundle of documents. It runs from the first pre-action letter through to final orders, or through to the day a Binding Financial Agreement is signed. If the business has a cracking quarter in month nine of your negotiation, that is disclosable. If you refinance, sell the ute, cash out shares, the other side gets to know.

Worth doing this week: put a standing reminder in your phone every three months to ask yourself one question. What has changed in my financial position since I last told them?

Translation: disclosure is not the paperwork before the case. It is the case.

"Everything" means everything, including the parts you would rather not send

The pattern we see in men who run businesses or hold professional licences is not fraud. It is curation. You send what you think is relevant and quietly leave out the awkward bits, because the awkward bits need explaining and you are tired.

Here is the list courts and lawyers actually expect. Every source of income, interest and earnings. Real estate, vehicles, bank accounts, shares, and digital assets including crypto. Superannuation for every fund you have ever had. Liabilities, including credit cards, tax debts and any guarantee you have signed for someone else. Financial resources, which covers trusts where you are a beneficiary, trustee or appointor, partnership interests, and an inheritance you are likely to receive. The standard document set is usually three financial years of personal and business tax returns and Notices of Assessment, twelve consecutive months of bank and credit card statements, your three most recent payslips, current super statements, and trust deeds and financials.

Then the one that catches people out. Any property you disposed of, sold or transferred in the twelve months before separation, or at any time since. That is the clause that captures the loan you "repaid" to your brother the week the marriage ended.

Disclosure in a property settlement is its own machine, and it runs on documents, not assurances.

Suggested move: build one folder, with one index, and put the embarrassing documents in first. The gambling month. The director's loan. The cash job from 2023.

Translation: if you would hate having it read out in court, that is precisely the document that has to go in the folder.

Under-disclosure is one of the most expensive mistakes available to you

Men think the downside of hiding something is getting caught and handing it over. It is not. The downside is the whole settlement coming apart years later.

Under section 79A (married) or section 90SN (de facto), a court can set aside or vary final property orders where there has been a miscarriage of justice caused by fraud, false evidence, or the suppression of evidence, which includes failing to disclose. A Binding Financial Agreement can be set aside for fraud too, and non-disclosure of a material matter counts. The question a court asks is whether the omission was material, not whether you meant it. A small slip and something big enough that the outcome would have been significantly different are treated very differently, and where yours sits is the court's call, not yours.

Then the compounding costs. A court can draw adverse inferences against the party who did not disclose, which in plain English means the judge can resolve the doubt against you and work on the basis that the undisclosed thing is worth what the other side says it is worth. Costs orders can follow, sometimes on an indemnity basis, meaning you pay their legal bill in full. Parts of your claim can be struck out. Evidence you failed to disclose in time can be excluded. If you file in court you sign an Undertaking as to Disclosure, and signing a false one is contempt of court.

Picture a purely hypothetical example. A man with a small construction company forgets a second company account holding ninety grand. A subpoena to the bank turns it up in month eight. He now has to explain that account, and the judge now has to decide whether to believe him on everything else: the value of the goodwill, the plant, the loan from his parents, what he says he contributed at the start. For ninety thousand dollars he has put every other number in the case up for argument.

Suggested move: tell your lawyer the worst fact in your finances at the first meeting, not the fifth.

Translation: one hidden account rarely costs you just the account. It can cost you the benefit of the doubt on every contested number in the case.

Step one poisons the whole well

The decision-making pathway was codified into the Act with the same 2025 reforms, and it runs in order. Identify the property, liabilities and superannuation. Assess contributions, financial and non-financial, including homemaking and parenting. Consider current and future needs, including income capacity, age, health, care of children, and the effect of family violence including economic and financial abuse, which is now expressly recognised in section 4AB. Then ask whether the result is just and equitable.

Notice that step one defines the pool everything else operates on. If the pool is wrong, the percentages are meaningless. A strong argument about your contributions applied to a false asset pool produces a false answer, and everyone in the room eventually works that out.

Suggested move: before you argue about percentages, agree the list. One schedule, asset by asset, with values and the source of each value.

Translation: there is no arguing about slices while you are lying about the size of the pie.

When you think the other side is hiding assets

This is the other half of the file, and it has proper tools. None of them involve you playing detective.

Start with a written request that is specific. Not "send me your finances", but the accounts, the periods, the entities, the years, with a date to respond by. Vague requests get vague answers and can cost you months. If documents do not come, the next step is an order for disclosure or for the production of specific documents. Non-compliance with a court order is a very different problem for them than ignoring your email.

Then subpoenas. Banks, accountants, employers, land titles offices, finance brokers. A subpoena goes to the third party who has no reason to protect anyone, which is exactly why it carries weight. Where there is a business, a trust or a professional practice, an expert valuer or forensic accountant can trace the flows: drawings, loan accounts, related-party transfers, income that vanished the year before separation.

One thing to know about wastage, meaning money one of you burnt through. The old practice of notionally adding that money back into the pool has been narrowed by the reforms. Courts work with the property that actually exists and weigh deliberate waste through the contributions and future needs steps instead. It is still addressed. It is just addressed differently, and that ground is still settling.

And a warning, because it lands on our desks constantly. Do not go into her email, her cloud storage, or her accounts. Illegally obtained material can be excluded, it can expose you to separate legal risk, and it can hand the other side a story about your behaviour that is far more interesting than her bank statements. If you have a genuine suspicion, that is what the formal process is for. Men who understand how the process works before they act are not the ones improvising at 2am.

Suggested move: write down the specific reason you suspect something, with dates and amounts, and hand that list to your lawyer. Suspicion drafts a bad subpoena. Detail drafts a good one.

Translation: your job is not to catch them. Your job is to use the process so that staying quiet becomes the expensive option.

Disclose first, disclose clean, take the tempo

There is a strategic reason to be the party who discloses completely and early, and it has nothing to do with being a nice guy.

Credibility is not a trick you pull in the witness box. It is built out of paper you handed over before anyone had to ask twice. Full disclosure does not decide your case, and no lawyer can tell you what a court will do with it. What it does decide is what you spend the case arguing about: the value of the assets, or yourself.

It also changes where the pressure sits. Once your bundle is complete and indexed, the delays in the matter are theirs to explain, and the record shows who was ready and when. What a judge makes of that is a matter for the judge. Your part is making sure the record is not about you.

The honest cost is time. It is a dull weekend with a scanner. Do the work once, properly, and you have not handed them an easy argument about your character, which is how you try to keep the fight where it belongs: what the assets are actually worth. Cost is the usual reason men delay getting help at all, which is why we run a fee structure that waits until settlement for eligible property matters. And if you separated a while ago, check where you sit on the clock with the property settlement time limit calculator, because the duty to disclose does not help you if you have run out of time to make a claim.

Suggested move: this week, pull twelve months of statements for every account in your name or your entities' names into one place. No editing. No explanations yet. Just the paper.

Translation: the folder you are avoiding is the cheapest asset in the settlement.

FAQ

Do I really have to hand over my whole business's books?

Yes, if the business is relevant to the property pool, and it almost always is. Expect tax returns and Notices of Assessment for the last three financial years, financial statements, trust deeds and the loan accounts. Partial disclosure is worse than full disclosure, because it invites a valuer to assume the worst.

What if I think she is hiding cash from her business?

Write a specific disclosure request, and if nothing useful comes back, move to orders for disclosure and subpoenas to banks and accountants. A forensic accountant can trace drawings and transfers. What you should not do is access her accounts yourself.

Can a settlement be reopened if I find out later that she lied?

It can be. A court has power under section 79A (or section 90SN for de facto) to set aside or vary final orders where non-disclosure or fraud caused a miscarriage of justice, and a Binding Financial Agreement can be set aside for fraud including non-disclosure of a material matter. The omission has to be material, not trivial, and whether it clears that bar is for the court to decide on the evidence.

Do I have to disclose an inheritance I have not received yet?

If you know about it and it is likely, it is a financial resource and it goes on the list. How it gets treated is a separate argument, and one worth having properly. Leaving it off can turn a fair argument into a credibility problem.

Does disclosure include my superannuation?

Yes, every fund, current statements, and self-managed fund financials if you have one. Super is property that can be split, so leaving a fund off the list is the same as leaving a house off the list.

How long do I have to start a property claim?

Generally twelve months from the date your divorce becomes final, or two years from the end of a de facto relationship, with the court's permission required after that. Work out your date with the time limit calculator and get advice on where you stand on property before the window closes.