NSW Property Settlement - No Full and Frank Financial Disclosure Required?

bert gaston · 14 February 2019

Hi folks,

My wife has proposed a 50/50 split of our assets in property settlement. Her lawyer is writing up the agreement. They have said that they do not require a full and frank financial disclosure on my part.

Is this a red flag?

Thanks,

Atticus · 14 February 2019

What sort of agreement? If It's a binding financial agreement then you wouldn't. But, if it is a BFA, you will need your own independent legal advice on the advantages and disadvantages of signing off on the terms.

Rob Legat - SBPL · 14 February 2019

It can't be a binding financial agreement - they do require a full disclosure of assets and liabilities. If you don't, that can be one of the reasons why they're voided.

Atticus · 14 February 2019

Rob Legat - SBPL said:
It can't be a binding financial agreement - they do require a full disclosure of assets and liabilities. If you don't, that can be one of the reasons why they're voided.

I haven't seen anything in legislation that particularly mentions non disclosure of all assets and liabilities being grounds to set aside a BFA... I know in relation to financial agreements the act at S90K(1a) talks about deliberate fraudulent omissions that includes non-disclosure of a material matter being grounds.

Out of interest, Is that the section that you would be relying on to have an agreement set aside or is there some other legislation that you could point me to?

Thanks

Rod · 14 February 2019

Atticus said:
I haven't seen anything .....{that says} non disclosure of all assets and liabilities being grounds to set aside a BFA

You'd be correct. However non-disclosure can weaken the 'binding' in the financial agreement and it becomes easier to have it declared void.

Full disclosure is only required if a party is required to file a financial statement.

The requirement to obtain legal advice means that a lawyer is unlikely, or will at least heavily qualify the advice, to say the agreement cannot be fully tested for fairness. It is then up to the person receiving the advice to do what they want.

Atticus · 14 February 2019

Thanks Rod..

That's exactly as I always accepted it to be, which is why I think Bert is referring to a BFA in his question... I guess we'll have to see if he can add something more in the way of detail

Rob Legat - SBPL · 15 February 2019

Atticus said:
I haven't seen anything in legislation that particularly mentions non disclosure of all assets and liabilities being grounds to set aside a BFA... I know in relation to financial agreements the act at S90K(1a) talks about deliberate fraudulent omissions that includes non-disclosure of a material matter being grounds.

Out of interest, Is that the section that you would be relying on to have an agreement set aside or is there some other legislation that you could point me to?

Thanks

That’s the one. Failing to disclose assets can be a material matter. A higher hurdle, but in the same vein, is the unconscionability of a party under subsection (1)(e).

Atticus · 15 February 2019

Thanks for clarifying Rob...

Seems very odd then that a lawyer writing up any sort of agreement worth the paper it's written on would say they don't require full and frank disclosure.

Rod · 15 February 2019

Depends on the instructions from the clients.

Not everyone is dishonest and hiding assets and if the client insists they don't need or want it, then the lawyer should act on those instructions. The lawyer should advise the client on consequences but at the end of the day it is a client's choice. It is not like criminal law where the hands of lawyers are tied to some extent by laws.

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NSW Property Settlement - No Full and Frank Financial Disclosure Required?

bert gaston

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Atticus

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Rob Legat - SBPL

Lawyer

Atticus

Well-Known Member

Rod

Lawyer

Atticus

Well-Known Member

Rob Legat - SBPL

Lawyer

Atticus

Well-Known Member

Rod

Lawyer

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