Property settlement is how parties to a de facto relationship or marriage divide their assets, debts and superannuation. A party cannot ascertain how a property settlement can happen without knowing what the assets, debts and superannuation of the parties are. Therefore, it is important that each party to a property settlement give disclosure to each other about their respective financial positions. Such disclosure involves providing copies of documents to the other party evidencing their respective financial position. Copies of documents that each party are required to provide include:
- bank statements;
- taxation returns;
- superannuation member statements;
- pay slips;
- employment contracts;
- financial reports for companies or trusts;
- share portfolio statements.
The parties are obligated to provide all documents that are relevant to help assess how the assets, debts and superannuation are to be divided and knowing what documents to provide can be difficult.
What happens if a party does not disclose the documents that are required?
If a party does not disclose the documents that should be provided:
- The other party can ask the court to make an order for specific documents to be provided. If such an order is required to be made because a party has refused to provide the documents then it is likely that a court will also order that the non-disclosing party will pay all or some of the costs incurred by the other party obtaining the order;
- A subpoena may be issued by the court for the party or a third party such as a bank to provide the documents to the court. The cost of obtaining the documents and the subpoena may be required to be paid by the non-disclosing party;
- A court may not allow for a document to be used if the document has not been previously disclosed. This may have a significant impact on the decision that the court makes about how the property is to be divided;
- A court may find that the non-disclosing party has assets that have not yet been disclosed and will be more generous to the other party when dividing the assets of the parties that have been identified.
Parties to a separation should always provide all relevant documents that need to be disclosed to ensure that the best advice can be provided about property settlement and ensure that the matter has the best opportunity of resolving without court proceedings. If a party refuses to provide disclosure then the other party has no option but to start proceedings and is less likely to agree to an early settlement due to emotional and financial stress of having to start court proceedings
Our expert family lawyers can advise about the documents that need to be provided to avoid the potential costs that will be incurred due to non disclosure by a party. Contact Armstrong Legal.