Time after time new clients will start their contact with us with a cry of help needing to either start pre-action or respond to a pre-action (Initiating application) for a divorce or separation. It usually goes something like this…

“My husband (wife) will be extremely difficult in this separation. He (she) is very controlling of my wages and the finances and I don’t know where to start.”

Quite often too, one of the parties doesn’t have external family support or friends to help them through. Being at the mercy of your in-laws can be extremely intimidating – no matter what you do (or don’t do) you feel those around you will judge you.

So let us help break it down for you.

Disclosure of correspondence

When couples separate, the parties must disclose relevant ‘paperwork’, such as all bank statements, pay slips, work contracts, superannuation statements and the like.

Each party has the duty to make timely, full and frank disclosure of all the information relevant to the issues in dispute.

Exchange of Documents

Both parties should promptly exchange copies of the requested documents in their possession or control relevant to the issue in dispute at all stages, including before starting court proceedings.

• Assets
• Income
• Liabilities
• Documents that are relevant to the dispute
• A copy of any document required by the other party, identified by reference to the list of documents.

To avoid any confusion, refer to the Financial Statement and rules 6.03 and 6.06 of the Family Law Rules – this will guide you as to what information to provide and documents to exchange.

Our Family Lawyers will help you through this process to ensure that you are complying with the legal obligations at this stage.

Are there any documents that I don’t need to disclose?

Rule 6.15 of the Family Law Rules sets out documents that do not need to be produced.

Such documents may relate to where there is a claim for privilege from disclosure or documents that have already been disclosed and where there has been no change likely to affect the result of the case.

What happens if I fail to disclose information in my divorce?

Failure to disclose information can result in serious consequences, including punishment for contempt of court.

What documents do I need to disclose for exchange?

The Court would consider the following documents as appropriate for exchange.

For Maintenance cases

• Taxation returns and Tax Assessment for the most recent financial year
• Bank records for the previous 12 months
• Wage or salary payments, and the most recent payslip
• Copies of the last four Business Activity Statements lodged (BAS), if you have an Australian Business Number (ABN)
• Any document relevant to determining the income, expenses, assets, liabilities and financial resources of the party.

For Property Settlement cases

• Three most recent Tax Returns and Tax Assessments
• Documents about any relevant superannuation interest, including:
  • The completed Superannuation Information Form
  • If you have an SMSF (Self Managed Superannuation Fund), then you will need a trust deed and the last three financial statements
  • The value of the superannuation interest (how it has been calculated and documents to back up the working)
• Copies of the last four Business Activity Statements lodged (BAS), if you have an Australian Business Number (ABN)
• If the party has an interest in a corporation (business), trust or partnership, then copies of the three most recent financial statements (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) and the last four Business Activity Statements lodged by each corporation, trust or partnership.
• For any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s constitution
• For any trust, the trust deed
• for any partnership, the partnership agreement, including amendments, and
• unless the value is agreed, a market appraisal of any item of property in which a party has an interest.

Each party must produce such documents to the other party, in cases where one party is unable to provide a document, a third party authority (such as an accountant) may be required to provide the required information where possible.

It is very important that any documents that have been provided for disclosure are not used for any other purpose other than the intended dispute for the case only.  There could be serious consequences if this is breached.

The role of Expert Witnesses in Pre-action Procedures

In some situations, parties may decide that an Expert Witness may be required to formalise a value or condition.  For example,  in the case where one party may want to buy out the other party in the matrimonial home, an Expert Witness may be able to provide a more accurate estimate of the fair market value considering more factors than a real estate agent might.

• An expert witness must be instructed in writing and must be fully informed of their obligations
• An expert witness is engaged on the basis that their evidence is necessary to resolve the dispute.
• An expert witness should be instructed by both parties (where practicable)
• If separate experts’ reports are obtained, the Court requires the reports to be exchanged.

If this is the stage you are up to in your separation, then get SB Family Lawyers involved.  We will help you through these steps and guide you.  It Can be a tricky and stressful time for you, you’ll have lots of questions, about your ex-partner’s disclosure and your own.  It is our job to help make sure that you comply with your disclosure duty.

We’ll advise you of the best way of resolving the dispute in the most efficient & cost-effective way without unnecessary legal action. We’ll help you understand your legal rights and responsibilities and explain how the law applied to your situation.