Every separating couple in Australia who reaches the financial side of their split runs into the same instruction from lawyers, mediators, and the court itself: disclose everything. Full and frank disclosure. No exceptions, no rounding down, no leaving things out because they feel personal or because the other party would not know to ask.
What sits underneath that instruction has changed. As of 10 June 2025, the duty of disclosure is no longer just a procedural rule; it is a statutory obligation, written into the Family Law Act itself. This post explains what the duty is, who it applies to, when it starts, what you have to disclose, what happens if you do not, and how it shows up in Family Dispute Resolution before any court application is filed.
The duty in one sentence
Each party to a financial or property matter has a duty to the other party, and to the court if proceedings are on foot, to give full and frank disclosure, in a timely manner, of all information and documents relevant to the issues in the matter.
That sentence does the work. The rest of this post unpacks each part of it.
What changed on 10 June 2025
Before 10 June 2025, the duty of disclosure lived in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, principally in Rule 6.01. The duty was binding and supported by a long line of authority, but it was a procedural rule rather than a statutory provision.
The Family Law Amendment Act 2024 changed that. From 10 June 2025, the duty was elevated into the Family Law Act 1975 itself, in three new sections: section 71B for married parties, section 90RI for non-Western-Australian de facto parties, and section 90YJA for Western Australian de facto parties. The Rules continue to apply, with cross-references to the new statutory sections. The substance of the duty did not change; what changed was its statutory force, and the shift brought a new parallel obligation onto legal practitioners and FDR practitioners, addressed below.
The three sections: 71B, 90RI, 90YJA
The duty appears three times in the Act because Australian family law treats married couples, non-WA de facto couples, and WA de facto couples under separate property regimes. The substance of each section is materially identical; the population each one covers is different.
Section 71B applies to parties to a marriage. Section 90RI applies to parties to a de facto relationship anywhere in Australia except Western Australia. Section 90YJA applies to parties to a de facto relationship in Western Australia, under Part VIIIC of the Act, which the WA Parliament has referred to the Commonwealth Parliament for that limited purpose.
What "full and frank" actually requires
Full and frank disclosure is not the same as answering the questions you are asked. It is the obligation to disclose information that you know is relevant, whether or not the other party has asked for it, and whether or not the other party knows enough to ask.
Three elements sit inside the standard. Full means the entire scope of what is relevant, not a curated selection. Frank means honest and complete in form, not technically true but practically misleading. Timely means without unreasonable delay, and as soon as the information becomes available.
The duty extends to information held by third parties where the party can obtain it. If a superannuation statement is held by the fund, the party is taken to have access to it and must disclose it. The same applies to bank records, tax returns, business accounts, and trust documents where the party is a beneficiary or has practical control. It also extends to information about property disposals in the year before final separation and the period since: a car sold to a sibling, a sum transferred to a parent's bank account, a partial interest signed over to a friend. The court can take property disposals into account when deciding what the property pool is and how it should be divided.
When the duty starts and when it ends
The duty starts at the pre-action stage, before any court application is filed. Once parties begin to prepare for a financial proceeding, the duty is on. Where a matter is being negotiated through Family Dispute Resolution rather than through litigation, the duty applies from the start of that process too.
The duty continues throughout any proceeding until the proceeding is finalised. New information that becomes relevant during the proceeding must be disclosed as it arises. The duty does not end when a party has handed over a first batch of documents; it is ongoing.
For matters that resolve outside court through Consent Orders or a Binding Financial Agreement, the duty informs the integrity of the agreement itself. An agreement reached on the basis of incomplete disclosure can later be challenged and, in some cases, set aside.
What you must disclose
The Family Law Rules set out categories of information and documents that must be disclosed in a financial matter. The list is not exhaustive; it is a floor, not a ceiling.
The core categories include earnings from employment and any other source, interests in real property, interests in personal property of value, interests in superannuation funds, interests in companies, partnerships, and trusts, financial resources including a deceased estate where the party is a named beneficiary and the estate is in administration, liabilities of every kind including taxation and family loans, and any disposals of property in the relevant lookback period.
In practice, a party in financial FDR or court proceedings will be asked to provide bank statements for a defined period, tax returns and notices of assessment, payslips, superannuation member statements, valuations or evidence of value for real estate and business interests, loan and credit card statements, and a schedule of assets and liabilities at the date of separation and at the current date.
Where a party holds an interest in a trust or company, the disclosure extends to the underlying entity. Trust deeds, company financials, and minutes can be relevant.
Two areas often get this wrong, in opposite directions. The first is inheritance. A deceased estate where the party is a named beneficiary and the estate is in administration is disclosable, because the entitlement exists and only the timing of distribution remains. A potential bequest under a living testator's will is not disclosable, because a will can be changed at any time before death. The distinction matters: a parent who is still alive may revise their will at any point, and the party has no legal entitlement until they die.
The second is life and total and permanent disability insurance. A policy with a payout provision that is not death-contingent, such as a surrender value, a cancellation payout, or a crystallised TPD lump-sum entitlement, is disclosable as a financial resource. A pure death-contingent term life policy with no surrender component is generally not. The disclosable position depends on the actual policy terms, which should be checked rather than assumed.
The point of the floor is to make it harder to argue that something was not relevant because the other party did not ask. If it is in the floor, it is in scope. If it is outside the floor but materially relevant, it is still in scope.
What happens if you do not disclose
The consequences of failing to disclose are well-established and have been strengthened by the 2024 amendments.
The court can take the non-disclosure into account when deciding how to divide the property. In practical terms, the court can draw an adverse inference: that the missing information would have been unhelpful to the non-disclosing party, and that the property pool or the contributions analysis should be adjusted accordingly. The leading authority on adverse inference for non-disclosure is Weir and Weir (1993) FLC 92-338. The husband in that case had deliberately failed to disclose $100,000 in funds. On appeal, the court ordered him to pay the wife half of the hidden amount, applying the principle that where non-disclosure is deliberate, the court should not be unduly cautious in making findings favourable to the innocent party. The principle has been applied consistently since.
The court can also make costs orders against a non-disclosing party. Section 114UB of the Family Law Act 1975 provides a specific costs power in relation to breach of the duty of disclosure. A party who has caused the other side to incur costs by failing to disclose can be ordered to pay those costs personally.
The court can stay or dismiss the proceeding pending disclosure. In a stay, the proceeding is paused; in a dismissal, the application is struck out, and the non-disclosing party may need to re-apply. Either outcome adds delay and cost.
In serious cases, a deliberate and material false statement made on an undertaking as to disclosure can be a contempt of court. A finding of contempt can lead to costs, fines, or in extreme cases imprisonment, though the latter is rare in family law proceedings.
Suiker and Suiker (1993) FLC 92-463 takes the principle one step further. In that case, the husband applied for a redundancy of approximately $160,000 without informing the wife, and Consent Orders were made in ignorance of the entitlement. The Full Court set aside the Consent Orders under section 79A of the Family Law Act, on the basis that the non-disclosure constituted a miscarriage of justice. The point: a party who avoids disclosure at the time of settlement does not necessarily escape the consequences when the settlement is finalised. Final orders can be reopened, sometimes years later, when undisclosed assets come to light.
The FDR practitioner's parallel obligation
The 2024 amendments did something the previous rules-based regime did not. Each of sections 71B(9), 90RI(9), and 90YJA(9) imposes a parallel obligation on legal practitioners and Family Dispute Resolution practitioners who engage with a party who is, or might be, subject to the duty of disclosure.
The practitioner must inform the party of the duties of disclosure and explain the circumstances in which they apply, set out the potential consequences of not complying, and encourage the party to take all necessary steps to comply.
For an FDR Practitioner, this obligation has practical consequences. Before financial mediation begins, the practitioner walks each party through the duty, explains what falls inside it, sets out the consequences of breach, and gives the party concrete steps to take. In many practices, including those running the new Full and Frank Disclosure worksheet protocol, the worksheet itself is the operationalisation of this obligation: it tells the party what categories to gather, gives them space to record each item, and asks them to confirm completeness before mediation.
The obligation is on the practitioner, but the duty itself remains on the party. A practitioner who has done their part by informing the party correctly is not responsible for a party who chooses not to comply. The practitioner's role is to make sure the party knows.
How the duty applies in FDR before any court application
Many separating couples will resolve their financial settlement entirely through FDR, without ever filing a court application. The duty of disclosure still applies in full to that process.
In FDR, the duty is operationalised through the disclosure worksheet, the intake session, and the joint mediation session. Each party completes the worksheet ahead of the first joint financial session, gathers the supporting documents, and brings the package to the mediation. The mediator, in their capacity as the FDR Practitioner, confirms with each party that the duty has been explained, that the party has had reasonable opportunity to gather their information, and that the disclosure presented is offered as full and frank.
Where one party has not made full disclosure, the mediator can decline to continue the joint session, can adjourn for further preparation, or, where appropriate, can issue a Letter of Attendance and Genuine Effort recording the disclosure shortfall. The Letter then becomes evidence the disclosing party can rely on in their own Genuine Steps Certificate, under Schedule 1 of the FCFCOA (Family Law) Rules 2021.
A worked example: a separated de facto couple comes to FDR for financial settlement. During the first joint session, the mediator notices that one party's worksheet does not list a small business they are known to part-own. The mediator pauses the joint session and, in a private breakout room, walks the party through the duty under section 90RI. The party agrees to gather the business documents and return to a second joint session. Disclosure is completed; settlement is reached; the matter never goes to court.
Why early honest disclosure costs less than late forced disclosure
The cost of disclosing is the time it takes to gather the documents, complete the worksheet, and answer reasonable follow-up questions. Most parties can do that in a few weekends.
The cost of failing to disclose and being found out later, whether during proceedings or after them under section 79A, is much greater. Subpoenas to banks, superannuation funds, the Australian Taxation Office, accountants, and trustees are all available to the other party, and their cost can be sheeted home to the non-disclosing party under section 114UB. Adverse inferences can shift the property division by tens or hundreds of thousands of dollars.
The cleanest path through a financial settlement runs through early, full, honest disclosure: on time, in writing, with the supporting documents. The duty under sections 71B, 90RI, and 90YJA exists because the alternative, in the long run, is always more expensive than the truth.