When a Judge or Magistrate contemplates an appropriate property settlement one of the first things he or she needs is a complete list of the assets of the parties, as at the date of the hearing.
It of course makes sense that to be able to divide property one needs to know what is there to divide up between the two of you. Lawyers are no different.
The first thing a lawyer will do is ask for complete financial disclosure from you and the other side. What does this mean?
Depending how long ago you separated it is usual for the following request to be made to the other party (this is not an exhaustive list):
1. the party’s three most recent taxation returns and assessments;
2. copies of bank statements held in the parties sole name or jointly with another person (usually one asks for a period of twelve months, however, if the parties have separated some time ago more bank statements might be required);
3. copies of credit card statements held in the parties sole name or jointly with another person (usually one asks for a period of twelve months, however, if the parties have separated some time ago more bank statements might be required);
4. copies of wage slips for the last six months (again you can ask for more if necessary);
5. copies of current mortgage statements;
6. copies of current loan liabilities in your name or held jointly with another person;
7. any superannuation documents for each superannuation interest of the party, including:
a. the completed Superannuation Information Form;
b. for a self-managed superannuation fund, the trust deed and the last three financial statements
8. for a corporation (business), trust or partnership a party has an interest in financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;
9. for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date;
10. for any corporation, its most recent annual return, listing directors and shareholders and the corporation’s memorandum and articles of association;
11. for any trust, the trust deed;
12. for any partnership, the partnership agreement;
13. a market appraisal of any item of property in which a party has an interest.
Basically you have to prove your net worth to the other side and the court. Often people are reluctant to do this, particularly if property or assets have been acquired after separation. However, being difficult and not complying with disclosure does not assist your case. We will look at property purchased after separation is dealt with by the court in another post.
If you do not produce what is asked of you and the matter is at court the other side can subpoena various organisations to establish your net worth and make further enquiries from what is found. This can have costs implications for the party who refuses to participate in full and frank disclosure because subpoenas are a costly way to obtain information you should have made available voluntarily.
The process of full and frank disclosure can appear an invasion of privacy; however, nothing is gained by making the process slow and difficult.
At the end of the day the faster you make documents available to the other side, the faster a resolution might be reached. People who are reluctant to make their financial documents available appear as though they have something to hide, which of course they might.
Once both parties’ net worth and financial earnings have been established you can start some meaningful negotiations with the other party.
Remember an informed decision is a good decision.
You can read the rules about disclosure yourself by following the links on the family court website (on the home page go to publications and then look under D for Duty of Disclosure).
As always good luck.
