Financial disclosure — what to disclose and why it matters

The duty — full and frank disclosure

Under Australian family law, each party to a property matter has a duty to make full and frank disclosure of all their assets, liabilities and financial resources.

The duty applies:

• In consent orders matters (a legal requirement for the court to approve the orders)
• In BFAs (a procedural requirement for the agreement to be binding — non-disclosure is a primary ground for setting a BFA aside)
• In litigation (a court-enforced obligation, with penalties for breach)

The duty applies to both parties, not just one. Even where only one party engages a lawyer (as in consent orders), the other party must still disclose.

What needs to be disclosed

Everything. The standard categories:

Assets

• Real estate — the family home, investment properties, holiday homes, blocks of land, properties held in trusts or companies, properties overseas
• Bank accounts — sole names and joint names, current and savings accounts, term deposits, offset accounts
• Superannuation — every super fund either party has, including funds you might have forgotten about
• Shares and investments — listed shares, ETFs, managed funds, employee share schemes (including unvested), bonds
• Cryptocurrency — including coins held in self-custody wallets, on exchanges, in DeFi protocols
• Vehicles — cars, boats, motorbikes, caravans
• Business interests — companies in which a party is a shareholder or director, sole trader businesses, partnerships
• Trust interests — discretionary trusts, unit trusts, family trusts, testamentary trusts (any role: beneficiary, trustee, appointor)
• Personal property of significant value — art, antiques, jewellery of significant value
• Long service leave entitlements
• Annual leave entitlements

Liabilities

• Mortgages — on any property, sole or joint
• Personal loans
• Credit card balances — sole and joint
• Car loans
• Tax debts — including outstanding ATO assessments
• HECS-HELP debt — disclosed even though it remains the sole liability of the person who incurred it
• Business debts
• Buy-now-pay-later balances (Afterpay, Zip, equivalent)
• Loans owed to or by family members
• Other contingent liabilities — guarantees, sureties

Income

• Salary, wages, bonuses
• Business income
• Investment income — dividends, distributions, rental income
• Interest income
• Government benefits
• Other income streams

Financial resources

• Anticipated inheritances — including expected entitlements from a parent's estate
• Workers' compensation claims
• Insurance claims pending
• Long service leave that has not yet vested
• Other entitlements you have or are likely to have

The list isn't exhaustive. The principle is: anything you own, owe, earn, or are entitled to is potentially material. When in doubt, disclose it.

What counts as "material"

Anything that, if known, might have affected the other party's decision to sign the agreement (for a BFA) or to agree to the settlement terms (for consent orders) is material.

This includes:

• Assets you don't think they'll ever know about
• Assets that are technically owned but practically worthless
• Assets held in entities you control but don't own personally
• Future entitlements (like an anticipated inheritance from a parent in poor health)
• Past transactions that affect the current asset picture

The test is objective — not what you think is material, but what a reasonable person would consider material. Erring on the side of more disclosure is always safer than less.

Case law — small amounts have been enough

Case law in Australian family law shows that even small undisclosed amounts — as little as $20,000–$30,000 — have been held sufficient to set aside a BFA.

The risk of non-disclosure is not proportionate to the size of the undisclosed asset. A party who hides a $50,000 bank account on a $5 million asset pool isn't safe just because it's a small percentage. Material is assessed in context.

Including assets that may have no monetary value

The disclosure duty extends to assets that may never have realisable monetary value. The test is whether the asset is legally owned or held, not whether it's practically realisable.

Examples:

• A share in a family farm held on trust, where it's never going to be sold
• An entitlement under a will of a still-living parent (a discretionary expectation)
• Shares in a dormant company with no current assets
• An interest in an SMSF that holds only a token investment

All of these get disclosed in the schedules, even if they have $0 or nominal value. The point of disclosure isn't just about what's being divided — it's about giving the other party a complete picture of the relevant party's financial position.

Dormant entities

Every entity in which either party has any role — empty shelf companies, dormant family trusts, SMSFs with no balance, overseas accounts that haven't seen activity in years — must be disclosed.

If a party is a beneficiary, trustee, director, appointor, or holds any other position, the entity gets disclosed. Even if the entity has no current assets.

Financial assets vs financial resources

The technical distinction matters because it affects how the asset is treated.

Financial asset

Something currently accessible and valued. Money in a bank account. A property you own. A super fund balance. Shares in a brokerage account. These get included in the asset pool to be divided.

Financial resource

Something not yet accessible or not yet translatable into current value. Long service leave that hasn't vested. An expected inheritance held in another person's estate (which may or may not be received, and which the parent could change at any time). An employee share scheme entitlement with vesting conditions.

Financial resources are disclosed for completeness but are not typically divided as part of the agreement. They sit on the disclosure schedule with a note about their nature.

Why the distinction matters

A party with significant financial resources (e.g. a substantial inheritance expected from a wealthy elderly parent) may not be dividing those resources, but the other party is entitled to know about them. The information can affect:

• The overall fairness of the agreed settlement
• The other party's assessment of whether to accept proposed terms
• Future-needs adjustments in a court analysis

Disclosing financial resources accurately reflects the relevant party's broader financial position and gives the other party an informed basis for the negotiation.

Document exchange — how disclosure actually happens

In addition to the schedules in the BFA or consent orders application, the parties typically exchange documentary evidence supporting the disclosure.

Common documents exchanged

• Bank statements — typically the last 6–12 months for all accounts
• Super fund statements — most recent annual statements for all funds
• Property valuations — formal valuations or online appraisals
• Mortgage statements — for all property loans
• Tax returns — typically the last 2–3 years
• Pay slips — recent payslips showing income
• Business financial statements — for any business interests (P&L, balance sheet, tax returns)
• Trust accounts and tax returns — for trusts the party has an interest in
• Share portfolio statements — current holdings and values

Do we have to exchange formal documents?

For BFAs, exchange of supporting documents is not strictly mandatory but is highly protective. The BFA can include a "due diligence clause" recording that both parties were given the opportunity to exchange formal disclosure but elected not to.

For consent orders, more substantive disclosure is built into the application itself — the asset and liability schedules require specific values and supporting information.

For contested matters in court, formal disclosure is mandatory and enforceable by court order.

When to insist on document exchange

If you have any concern about the completeness of what your former partner is disclosing, asking for formal document exchange is the protective move. Specifically:

• Bank statements covering the period before and after separation (to identify any unexplained movements)
• Super fund statements showing current balances and contribution histories
• Tax returns (which often reveal income streams that wouldn't otherwise be visible)
• Business financials (for any business interests)

The request itself may create some tension, but having full information puts you in a much stronger position than guessing.

How disclosure is enforced

Different mechanisms in different contexts.

In a BFA

The duty of disclosure is built into the legislation underpinning BFAs. Non-disclosure of a material asset is one of the primary grounds for setting a BFA aside. If a court finds that one party didn't disclose something material, the BFA falls and the parties go back to general law for the property division.

The "due diligence clause" in the BFA records that both parties had the opportunity to exchange formal disclosure documents and accepted what was provided. It's a protective mechanism — if a party later claims they weren't aware of an asset, the clause provides evidence that they had the chance to look and chose not to.

In consent orders

The court will not approve consent orders without evidence that both parties have made full and frank disclosure. The application itself requires specific asset and liability schedules. If material non-disclosure is later discovered, the court can set aside sealed consent orders.

The grounds for setting aside sealed consent orders are limited — non-disclosure, fraud, duress, miscarriage of justice — but non-disclosure is the most common.

In litigation

The court has formal disclosure powers. Parties can be ordered to produce specific documents through discovery processes. Non-compliance can result in adverse inferences (the court assumes the undisclosed information would have hurt the non-disclosing party), costs orders against the non-discloser, or in serious cases, contempt of court.

A party who is genuinely uncooperative in disclosure is in a weak position. Courts take the duty seriously.

What if the other party won't disclose?

This is a common issue, particularly where the relationship has broken down badly.

Options

For matters in negotiation or pre-mediation (no court proceedings yet):

• Make formal disclosure requests through lawyers
• Reference the disclosure duty in correspondence
• Note that refusal will be raised at mediation, and at court if proceedings are commenced
• Conduct public-record searches where possible (ASIC searches for company interests, land titles searches, etc.)

For matters in mediation:

• The mediator can raise the disclosure issue
• The mediation may not be productive without basic disclosure
• Non-disclosure tends to undermine the value of any agreement reached

For matters in litigation:

• Court orders for discovery can compel production of specific documents
• Adverse inferences can be drawn against the non-discloser
• Costs orders can penalise the non-discloser

For matters that are just stuck because the other party won't engage:

• The matter may need to escalate to court proceedings to force engagement
• This adds cost and time but is sometimes the only path forward

If your matter is hitting a hard disclosure block, talk to us about whether the situation is suitable for our fixed-fee products or whether it needs to escalate.

What if I'm worried something has been hidden?

If you suspect your former partner has hidden assets, the options:

Before you sign anything

• Don't sign. A BFA or consent orders signed on incomplete disclosure are at risk of being set aside later, but the better path is to address the issue before signing rather than after.
• Insist on documentary disclosure. Bank statements, tax returns, super statements. If they refuse, that itself is a signal.
• Conduct public-record searches. ASIC for company directorships, land titles for property holdings, search engines for any public information.
• Get legal advice on the warning signs. A family lawyer who's seen the patterns can help you assess whether the concerns are well-founded.

After you've signed

If you've signed a BFA or consent orders and later discover material non-disclosure, you can apply to set the agreement aside on non-disclosure grounds. This is a court application that's substantive in cost and time, but is the available remedy.

Common patterns of concealment

• Bank accounts in sole names that weren't disclosed
• Crypto holdings in self-custody wallets
• Cash withdrawals or transfers shortly before separation
• Loans to family members that aren't really loans (effectively transfers)
• Anticipated inheritances that weren't disclosed
• Business assets undervalued or hidden inside trust structures
• Overseas property and accounts

If any of these patterns ring true for your situation, the disclosure issue is worth pressing on before signing.

A note on overseas assets

Overseas assets must be disclosed — the duty applies regardless of where the asset is located. Overseas bank accounts, foreign property, holdings in foreign companies, overseas pensions equivalent to super, all of it.

The practical complications:

• Overseas assets are harder for the other party to verify independently
• The relevant party has more practical opportunity to under-disclose
• Foreign-jurisdiction property is harder to deal with in the settlement (see Complex assets in settlements)

If you have overseas assets or know your former partner does, flag them at intake so the disclosure framework can be applied carefully.

How disclosure works in our products

Consent Orders

For the Essentials package, the disclosure framework is built into the consent orders application. Both parties' assets, liabilities and super balances are listed in the application. Supporting documents (super statements, certificates of title) are typically attached.

For the Full Service package, more extensive disclosure work is included — the lawyer takes a more active role in reviewing what's been disclosed and identifying any gaps.

BFAs

For both Simple BFA and Complex BFA, the BFA includes asset schedules at the back — typically Annexure A (joint property), Annexure B (one party's separate property), and Annexure C (the other party's separate property). These schedules form the disclosure record.

The BFA also typically includes a due diligence clause recording that both parties had the opportunity to exchange formal disclosure documents and either did or chose not to. This is a procedural protection — if a party later claims they weren't aware of an asset, the clause is evidence that they had the chance to look.

What the lawyer's job is

For your side of the disclosure, the lawyer:

• Walks you through what needs to be disclosed
• Reviews the schedules with you
• Flags anything that should be included that you might have missed
• Raises any questions about valuations or characterisations

For the other side's disclosure (in consent orders, where only one party has a lawyer), the lawyer can flag concerns but doesn't have independent visibility into the other party's information.

Common questions

Do I have to disclose my new partner's assets?

No. The disclosure duty is to the other party in the family-law matter — not to the broader picture of your life. Your new partner's assets are theirs, not yours. (However, where your new partner contributes to your living expenses, that may be relevant to your own financial position.)

What if I genuinely don't know the value of an asset?

Disclose the asset with your best estimate of its value, noting the uncertainty. If the asset is significant and the value uncertainty is material, getting a formal valuation may be worth doing.

What if I don't remember every detail?

Make a reasonable effort to identify all assets and liabilities. For things you might have forgotten, search your records — bank statements show transfers and balances; tax returns show income streams; super fund consolidation tools (like via MyGov) show super accounts. If you genuinely don't remember a specific detail, note the uncertainty.

What if my assets change between disclosure and signing?

Material changes need to be reflected. If something significant happens between drafting and signing (a property sells, an inheritance arrives, a business is sold), the disclosure should be updated and the documents revised.

Are joint social media or photos covered by disclosure?

No. The disclosure duty is financial — assets, liabilities, financial resources. Non-financial information (photos, social media, personal effects of nominal value) isn't part of the formal disclosure framework, though personal effects can be addressed informally in the settlement.

Can disclosure be done in stages, or does it all have to be at once?

Practically, disclosure builds up over the process. Initial disclosure happens at the early consultation stage; more detailed disclosure happens as the agreement takes shape. By the time the documents are signed, the disclosure should be complete and current.

Does the disclosure obligation continue after signing?

Generally, no — once the agreement is signed, the disclosure obligation for that matter is complete. The parties are bound by what was disclosed at the time. If new assets are acquired after signing, those are post-settlement and aren't part of what was agreed.

But: if material non-disclosure at the time of signing is later discovered, that's a ground for setting aside the agreement. So the obligation to have disclosed correctly continues to be enforced, even though no new disclosure is required after the fact.

The honest summary

Disclosure is the single most important procedural obligation in family-law settlements. It's also one of the most common areas where parties make mistakes — either through deliberate concealment, or through inadvertent omission.

For the disclosing party: err on the side of more disclosure. Anything that might be material gets disclosed. The cost of disclosing a low-value asset is zero; the cost of not disclosing a material one is potentially the whole agreement.

For the receiving party: insist on the documentation. Schedules without supporting bank statements, super statements, tax returns and valuations are easier to manipulate. The protective move is to ask for the documents.

For both parties: disclosure done well is the foundation of a settlement that holds. Disclosure done poorly is the foundation of a settlement that doesn't.