Often the biggest hurdle in resolving relationship property matters after a separation is getting disclosure of the assets and liabilities. If your partner is not providing you with disclosure, you can seek discovery orders from the Court before substantive proceedings are commenced.
Following separation, it is essential that full and proper disclosure of all assets and liabilities is given to each party and their lawyer so that relationship property matters can be resolved without unnecessary costs and delays.
Partners in a relationship property dispute have an obligation to one another to provide full and frank disclosure of all assets and liabilities. This obligation is in recognition of the unique circumstances that arise within an intimate domestic relationship and that obligation, along with the requirement for independent legal advice, assists in counteracting any power and control imbalance which may exist.
It is not uncommon for one partner in a relationship to have assets, liabilities or other interests in property in their sole name which the other partner may be aware exist but not know the value of, or they may have reason to suspect that the other partner has more property interests than they have disclosed.
Without full disclosure of the assets and liabilities involved and therefore knowledge of the full extent of the relationship property pool, it is not possible to negotiate in a meaningful way. There is also a greater risk that any agreement will be set aside in the future.
There are times when one partner does not want to provide disclosure. That can happen if they simply do not want to deal with the relationship break-up, they do not acknowledge that the other partner has a right to that information or if they want to hide some assets from their former partner. In such circumstances there is an option to apply to the Court for pre-proceeding discovery. An application can be made to obtain disclosure of a simple matter like the bank accounts held by the other party or something more complex like documentation related to a trust and the assets held by that trust.
An application for pre-proceeding discovery is quicker and cheaper than a substantive application to the Court for the division of relationship property. As obtaining disclosure is often the biggest hurdle in achieving a negotiated settlement of relationship property, once that is overcome progression to settlement is often swift, avoiding a need for a substantive application for the division of relationship property all together.
If an application for pre-proceeding discovery is successful, the Court will make an Order directing the other side to disclose the documents or class of documents requested in the application.
If you think that an application for pre-proceeding discovery will assist in the resolution of your relationship property matters, or you have any other questions related to relationship property, whether you are wanting to contract out of the equal sharing provisions, have separated amicably or are in a contentious separation where court proceedings have been issued or are likely, contact a member of Harkness Henry’s relationship property experts to see how we can assist.
This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.
Published: 11 November 2019