The Statutory Duty of Financial Disclosure in Family Law: Sections 71 B and 90RI 

For business owners, directors and high-net-worth individuals separating in Victoria, the duty of disclosure in family law in Australia begins when preparing for financial or property proceedings. It requires timely, full, and frank disclosure of relevant financial information and documents and continues throughout the case. 

Since 10 June 2025, the duty has been expressly contained in the Family Law Act 1975 (Cth), under section 71B for married parties and section 90RI for de facto parties. The pre-proceedings duty means relevant disclosure must be addressed while preparing a claim, even if no application has been filed. 

Where wealth is held through companies, trusts or overseas investments, disclosure may extend beyond personal bank statements and assets registered in one party’s name. Relevant indirect interests, financial resources, and transactions must also be addressed. The information exchanged needs to allow the parties to assess the financial position on which negotiations and valuations depend. 

The consequences of non-disclosure can include costs orders and restrictions on relying on undisclosed evidence. Identifying relevant records early, and updating disclosure as circumstances change, helps the parties negotiate on accurate financial information. 

What Laws Govern Financial Disclosure in Australian Family Law? 

In Victoria, the duty of disclosure in family law in Australia is governed by the Family Law Act 1975 (Cth), principally section 71B for married parties and section 90RI for de facto parties. Inserted by the Family Law Amendment Act 2024 (Cth), these provisions commenced on 10 June 2025 and placed the existing disclosure obligation expressly in the Act. 

Each party to financial or property proceedings owes the court and the other parties timely, full, and frank disclosure of relevant information and documents. Sections 71B(5)–(6) and 90RI(5)–(6) also impose a pre-proceedings duty between separated partners preparing for such proceedings. Disclosure covers information known to the party and documents currently or previously in their possession or control. The statutory provisions exclude appeals. 

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provide further detail. Rule 6.01 governs ongoing disclosure; rule 6.02 requires a disclosure undertaking; and rule 6.06 addresses financial circumstances, including indirect interests and interests held through companies or trusts. If a Financial Statement does not fully disclose the relevant financial circumstances, an affidavit providing further details must also be filed. 

The consequences of non-disclosure predate the amendments. In Penfold v Penfold [1980] HCA 4 at [16], the High Court restored a costs order where the husband’s financial statement omitted valuable interests, compelling the wife to establish his financial position. In Pearce & Pearce [2016] FamCAFC 14, the Full Court upheld a variation of consent orders under section 79A because non-disclosure denied the wife the opportunity to investigate relevant financial information and give fully informed consent. Not every omission justifies reopening orders. 

Section 114UB costs provisions, replacing former section 117, retain the starting position that parties bear their own costs. However, the court may order otherwise where justified and must consider conduct concerning disclosure. Other available responses include disclosure orders, taking the failure into account when altering property interests, and staying or dismissing proceedings. Contempt and sanctions for breaching orders require their respective legal conditions to be met. 

Sections 71B(10) and 90RI(10) also require legal practitioners and family dispute resolution practitioners to explain the applicable duties and potential consequences, and encourage compliance. Section 90YJA provides a corresponding duty for proceedings under Part VIIIC concerning Western Australian de facto superannuation interests. It is not the general disclosure provision for Victorian de facto property matters. 

How Do Courts Assess Financial Disclosure in Family Law Property Matters? 

What information is relevant to the financial dispute? 

Relevance depends on the issues being resolved, including ownership, value, income, and access to financial resources. The court needs sufficient information to test the financial position presented by each party. Full and frank disclosure extends to information that may prompt further enquiries, even if its financial significance is disputed. In Pearce & Pearce, the undisclosed material included a higher property value represented to a bank and documents concerning a business acquisition. For a Victorian business owner, a loan application or management account may therefore matter alongside tax returns and formal valuations. 

How are company and trust interests assessed? 

Rule 6.06 requires disclosure of financial circumstances. Holding wealth through an entity does not remove the obligation to disclose relevant interests, income, or financial resources. Trust deeds, distribution records, shareholder agreements, and director loan accounts may explain rights and benefits that personal bank statements do not reveal. Disclosure does not itself determine whether an entity’s assets belong in the divisible property pool. That is a separate legal question, while business valuation requires evidence of the particular interest being assessed. 

When must disclosure be provided and updated? 

The pre-proceedings duty applies while separated parties prepare for financial or property proceedings. Once proceedings begin, disclosure continues until finalisation. Information must be supplied in a timely manner, allowing it to inform negotiations and preparation rather than arriving only when a hearing is imminent. Under rule 6.06, a party whose financial circumstances change after filing a Financial Statement must generally file an amended statement within 21 days, or an affidavit if the changes can be stated clearly in 300 words or fewer. 

What if records are missing or held by someone else? 

Sections 71B(8) and 90RI(8) extend to documents previously held or controlled, as well as those currently available. Saying that an accountant holds the records does not resolve whether they remain under the party’s control. A party should identify missing records, explain what happened to them, and document retrieval attempts. Where relevant material is held independently by a bank, trustee, or company, a targeted production process may be needed. The obligation also covers known information, even without a corresponding document. 

How does the court assess the effect of an omission? 

The consequences of non-disclosure depend on the omission and the remedy sought. For consent orders challenged under section 79A, Pearce shows why denying a party the opportunity to investigate and obtain advice can undermine informed consent. A later difference of opinion about value does not alone establish non-disclosure. For costs, Penfold illustrates the significance of forcing the other party to incur expense establishing a financial position that should have been disclosed. 

What Disputes Arise Over Financial Disclosure in Family Law Property Settlements? 

Disputes over full and frank disclosure often concern the financial picture created by the documents supplied. For separating business owners and professionals in Victoria, disclosing an asset’s existence may leave unanswered questions about its value, associated liabilities or capacity to generate income. 

Pearce & Pearce provides a concrete example. The consent orders recorded an agreed property value of AUD 550,000. The husband had previously represented to a bank that the property was worth AUD 700,000 without disclosing that representation to the wife. The relevant failure was withholding the inconsistent information and the opportunity to investigate it. A retrospective valuation obtained years later could not establish that the husband had withheld a valuation he never possessed or knew about. 

The business acquisition in Pearce raised a related problem. The consent documents described anticipated borrowing and limited income prospects, while undisclosed agreements and financial records provided information relevant to testing that account. The wife’s general knowledge that the husband intended to acquire a business interest did not replace disclosure of the transaction documents. For parties negotiating around private company interests, knowing that an acquisition is underway is different from having the material needed to assess its financial implications. 

Access to records also became a substantial practical issue. Relevant company documents emerged during the trial, following an adjournment and a subpoena to the husband’s accountant. The wife’s advisers then had to investigate information that should have been available when the settlement was negotiated. This illustrates why disclosure disputes can expand into disputes about expert evidence and the reliability of the assumptions underlying an agreement. 

Penfold v Penfold demonstrates the costs problem. The husband’s financial statement presented liabilities exceeding assets, but omitted valuable interests held personally and through an estate, company, and family trust. The wife incurred expenses establishing his actual financial position. Section 114UB costs provisions now expressly require consideration of conduct concerning disclosure when deciding costs. The practical question is therefore whether incomplete disclosure has forced additional investigation or litigation, alongside the other statutory considerations. 

How Should You Prepare for Financial Disclosure in a Family Law Property Settlement? 

Before negotiating a property settlement or filing an application, separating business owners and high-net-worth individuals in Victoria should reconcile their financial records and identify gaps requiring explanation. The pre-proceedings duty makes early coordination between the client, lawyer, and accountant important. 

Compare tax returns, financial statements, and bank records for the relevant periods. Investigate discrepancies in director loan accounts, distributions, and related-party transactions before presenting a financial position to the other party. Where figures differ because documents cover different periods or use different accounting treatments, explain the difference, and provide supporting records. 

Maintain a disclosure register recording what has been supplied, when it was sent, outstanding requests and steps taken to retrieve missing material. Before signing the rule 6.02 disclosure undertaking, check that its statements can properly be made. Full and frank disclosure requires attention to the information conveyed, as well as the documents exchanged. 

If the other party’s disclosure is incomplete, identify the missing information, explain its relevance and request a response within a reasonable timeframe. Unresolved gaps may warrant targeted disclosure orders or subpoenas. Consider what the material is likely to establish, and whether obtaining it justifies the expense. An unexplained transaction warrants investigation; it does not establish concealment. 

For commercially sensitive records, identify protection needed and seek suitable directions. Any claim of legal professional privilege needs separate assessment; confidentiality alone does not establish privilege. Before finalising settlement terms, distinguish unresolved disclosure gaps from genuine disagreements about value. That distinction helps advisers identify whether the parties have enough information to negotiate and give informed consent. 

Frequently Asked Questions 

What should you do about financial disclosure before agreeing to a property settlement? 

Address financial disclosure before committing to settlement terms, particularly where business interests, trusts or substantial investments require investigation. Full and frank disclosure provides the information needed to assess the proposed division and give informed consent. Unresolved gaps should be identified and addressed, with advice on their significance and the steps available to obtain missing material. 

Our team advises on high-net-worth property settlements, including disclosure involving private companies, trusts and complex financial arrangements. If you need to clarify your obligations or respond to incomplete disclosure, book a consultation to discuss the records, outstanding issues, and options relevant to your matter. 

This article is general information only and not legal advice. For advice specific to your circumstances, please contact our team.