Re-opening Property Cases and Setting Aside Court Orders

26/05/2016

A fundamental part of Family Law so far as property division is concerned is the provision by each party of the full and frank financial disclosure.  In property proceedings, each party must provide to the other full and frank financial disclosure which means that:-

  • Each party must give the other all information that is relevant to the case.
  • Each party must continue to provide relevant information until the end of the case.
  • This will require a party to disclose all sources or earnings  interest ,income ,property interests and financial resources and this will apply whether the benefits come to a party directly or go to some other person such as  a child ,a de facto partner or a Trust
  • A party is also required to disclose information about all property that is sold or disposed of by them during the year prior to separation.

The Family Law Act provides to the Court power to re-open a property division whether that property division is by way of a Court Order (section 79(A)) or by way of setting aside a Binding Financial Agreement which has been entered into by the parties (section 90K).

In a recent decision of the Full Family Court of Australia the Court looked look at a situation where the wife wanted to re-open the settlement because the husband had failed to reveal documents and information that he held in relation to the value of a house that he owned. The matter was settled and for the purposes of the settlement of the division of assets between the husband and the wife, the husband attributed to a property a sparticular value.  The wife accepted the value and settled on that basis.  It was later learned that when dealing with a bank the husband told the bank the house was worth more than the figure used to work out the settlement

The outcome of the property division would have been different depending on which value was accepted for the purposes of the division.

The Court found that had the wife known that there was a difference in the value being provided to her and the value provided to a bank, she may not have settled on the basis that she did.  The wife was effectively denied access to the knowledge which would have allowed her to make a decision to have the property valued by an independent valuer.

In the circumstances, the Full Court upheld the single Judges decision to set aside the Consent Orders and allow the wife to effectively achieve a different outcome.

If you are faced with this situation or have made a rash decision under pressure or duress or without seeking legal advice and wish to have the Court Orders made set aside, Watson & Watson can assist.  Please call Richard Watson our experienced family law solicitor who is happy to discuss the matter with you and provide advice as to the course of action available to you.

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