Family Law Article - Splitting the assets - Duty of Disclosure
This article comes from the family law team at Hatzis Lawyers BrisbaneIn proceedings for property settlement involving the separation of a couple, each party has an obligation and a legal duty to the court to make a full and frank disclosure of his or her financial position to the other party.
What this means is that they have a duty to provide all documentation or information with respect to their assets and resources.
The importance of disclosure cannot be understated.Where a court finds that non-disclosure has occurred it has the discretion to make an adjustment in favour of the other party.
Whether non-disclosure is wilful or accidental is beside the point. A party who is found to have failed to disclose an asset or a resource can also find themselves having to pay the other party's legal costs if the matter ends up in court.
The duty of disclosure includes assets accrued during the relationship and also changes in the financial circumstances of the party since the time of separation up until the time court orders have been issued. This highlights the need for parties to obtain legal advice at the earliest opportunity after separation.
Parties need to take into account the fact that money or changes in financial circumstances such as new investments, contracts, changes in employment and so forth will continue to have a bearing on how the property ends up being split up until the time.
Orders are issued by the court that detail the final settlement. Changes in non-financial circumstances such as having to look after a dependant can also have an impact.
If the matter becomes litigious the parties will be required to complete a detailed court-prescribed form that has to be sworn.
Lifestyle is often an indicator of funds being available which may not have been disclosed or acknowledged. Credit card statements, pay slips, tax returns,real property searches, ASIC searches, balance sheets and profit and loss statements, bank statements and quarterly BAS statements can all be a useful starting point in terms of investigating any allegations of non-disclosure.
At Hatzis Lawyers we give our clients the advice they need with respect to disclosure and encourage them to obtain all the documentation they require so that we can advise them with respect to their entitlements. With that advice,they can make informed decisions.
At Hatzis Lawyers we also work closely with forensic accountants who have expertise necessary to untangle complicated financial arrangements and also in valuing differing business entities or identifying inconsistencies in financial statements.
The bottom line is that the parties who are separating need to be mindful of their rights and obligations with respect to disclosure of financial circumstances.
One party has the right to spend the time to properly investigate, demand, obtain and inspect documents with respect to the other parties' assets and resources. Indeed in many circumstances, it may be the only way a party can ensure that they will receive a fair settlement.
If you need any family law assistance in Brisbane, please email us and we can send out a family law pack to you.
Alternatively, you can call us on (07) 3345 4388 to give us an opportunity to serve you
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