One of the first things that any family lawyer is going to ask you about if you seek advice is, “what are your and your partner’s current assets and liabilities?”. If you can’t accurately answer that question, it can be really difficult to give advice about what you might be entitled to, and impossible to start negotiating a settlement.

If we don’t know how big the pie is, how can we divide it up fairly?

However, you might have an ex-partner who is secretive about their finances – this may have always been the case, or this might be something that has happened since separation.

So what do you do when your ex doesn’t want to tell you what’s in their bank account or how much they paid for their new car (and where they got the money for it from)?

Understand your rights

The Rules made under the Family Law Act (and equivalent Family Court Act for WA de facto couples) actually set out that each party to a Family Law dispute has an obligation to provide “full and frank” disclosure to the other party of all relevant documents.

What this means is that you are entitled to make reasonable requests for relevant documents from your ex partner, and they are required to provide those documents to you.

There is even a standard list of documents built in to the Rules that every party is to provide.

Be prepared to give as well as get

The easiest thing to do to show goodwill during the disclosure process and make the other party more open to participating is to provide full and open disclosure yourself, even before the other party does.

Think about your needs

Before you send your ex-partner a six page list of documents you want them to provide, including receipts for every Friday afternoon round he bought at the pub in the last 5 years, think carefully about how much information you really need.

Do you need 20 years of tax returns, or is it enough that you both agree you earned more than her since the children were born? Do you need his full bank statements, or is a snapshot of the balance at different dates sufficient?

I can tell you, there’s nothing like a really broad and intrusive disclosure request to get someone’s back up and stall a settlement.

You may not be able to work out what information is important and what doesn’t matter without professional help. That’s ok, because an experienced family lawyer can guide you to direct your energy to the stuff that will make a difference to a settlement outcome. At Illuminate Law we can work on a limited retainer, meaning that if all you want is help working out what to ask for, then we can provide that.

Set out a clear request

Once you’ve figured out what you’re entitled to, and what you actually need to help you sort out a  settlement, then you should put your request for documents in writing, in a list if possible, that you can check off against the documents you receive. This will avoid confusion and accusations that something was missed.

Including the Family Court brochure on the “Duty of Disclosure” wont hurt either.

Still nothing…what’s next?

If you have made a clear and concise request that is consistent with the other party’s obligation to provide disclosure, but you have still received nothing, there are two main options available:

1. Engage an FDR (Family Dispute Resolution) practitioner.
2. Commence Court proceedings.

Engaging an FDR

A Family Dispute Resolution practitioner may be able to assist you to negotiate with your ex-partner and get them to agree to provide the information relevant to settlement.

However, it is important to remember that an FDR practitioner’s job is not to make sure that you have explored all the possibilities of your particular situation and it is not to give you advice about whether any agreement you enter into is in your best interests.

Commencing Court proceedings

While this might seem like a significant step, commencing Court proceedings can actually facilitate a settlement.

When you commence property proceedings in the Family Court, the Court can order your ex-partner to provide relevant disclosure documents. You can also be ordered to attend a Conciliation Conference, a meeting chaired by a Registrar of the Court to encourage a settlement. And once you have proceedings on the go, you can issue subpoenas to organisations within this jurisdiction for relevant documents.

Being able to take advantage of the power of the Court to force disclosure can sometimes give enough information to allow a settlement to be reached, and as soon as you do, you can finalise the Court case.