Cash under the mattress – when is a final property order not a final property order?

Whether in court or around the living room table, former couples trying to agree on property settlement have an obligation to provide a complete picture of their financial circumstances.

This obligation is very broad and set out in some detail in the Family Law Rules 2004.

Even when making property settlement orders by agreement, the court needs to be satisfied that the proposed split of property is just and equitable. There is no way a court can determine that if there is not a complete picture of each party’s property, liabilities, income and financial resources.

This obligation can also work to level the playing field where perhaps one spouse has a lot more control or understanding of the finances then the other.

What happens if not everything is disclosed?

Even after final orders have been made, a party can apply to set aside all or part of those orders taking into account the non-disclosure.

If that party can prove to the satisfaction of the court that there has been a non-disclosure that amounts to a miscarriage of justice, the orders can be set aside, varied or replaced with new orders.

The same may go for a party failing to disclose something before signing a binding financial agreement (or “pre-nup”).

Before making such an application, there are some things to consider, including:

• Can I prove the non-disclosure? You may find payslips or bank statements showing income or savings that were never disclosed, it may be that simple. But what if the allegation is under-the-table payments or cash under the mattress – what evidence can you provide to the court to show it exists?
• Did you request detailed financial disclosure before the orders were made?
• Is the non-disclosure so significant that it makes the orders unfair? What orders would be made instead? Would I be better off? Could I be worse off?
• Have I disclosed everything? Make sure your own house is in order.

Of course, it is much better to not have to um and ah about applying to set aside final orders by ensuring that there is full and frank financial disclosure before any final agreement is reached. An experienced family lawyer should be able to advise you about what disclosure should be requested and exchanged to enable a swift and appropriate agreement about your property matters.

There are other circumstances that can lead to an application to set aside final orders. If you need advice about this or other aspects of family law, make an appointment with one of our family law team.