When a relationship breaks down, it frequently happens that trust between the parties, so necessary to make a marriage or a de facto union work, is one of the first casualties. This can lead to the parties not trusting each other when there are negotiations for a property settlement.
The Family Law Rules require that each party make a “full and frank disclosure” of their financial assets and liabilities to the other party. This is stated clearly in the Financial Statement document that each must file if the matter goes to court, but these documents are often used in negotiations between the parties’ solicitors.
So, what is a “full and frank disclosure”? It means what it says – you have to list all of your assets – the family home, investment properties, motor vehicles, shares, money in the bank, superannuation – the lot. And you give your best estimate of the value of each item. If the other side disputes any of your figures, they can get the item valued. It’s usual to get real estate valued by an agent or a sworn valuer, with the valuer’s fees to be paid equally by the parties.
Well, you say, that’s all very well for the assets that I know about, but I am suspicious that he/she may be hiding assets that they aren’t telling me about. What can I do about that? You can start with simply seeing whether there are any bank or superannuation statements at home that your ex hasn’t disclosed to you. Your Family Lawyer can then require the other lawyer to provide up to date statements of those accounts. If court proceedings have been started, your lawyer can issue subpoenas to banks or other financial institutions to produce their records of any accounts your ex may have but hasn’t disclosed. Similarly, searches can be done to see if your ex has any superannuation they haven’t disclosed.
If there is a business in which your ex was involved, it’s human nature that they would give a low estimate of the value of that business. Like a valuer assessing real estate, a forensic accountant can be appointed, at the joint expense of you and your ex, to value their interest in the business. This is often done in the course of negotiations, to try to settle the matter without the cost and stress of going to court.
Another issue that often arises, is overseas real estate owned by one of the parties. This can be brought into the “asset pool” for the purpose of negotiating a property settlement. Although often more difficult to assess than property in Australia, particularly in parts of Europe and Asia where the ownership of land and houses or apartments may be tied up with your ex’s family, it’s definitely worthwhile having your Family Lawyer investigate that and, if necessary, appoint an agent overseas to look into the ownership and vale of such property.
So, you don’t have to rely solely on your ex’s statements about property – you can, with the help of your Family Lawyer, dig down to find out whether they are hiding or understating assets or liabilities.