How Do I Find My Ex's Hidden Assets?

Updated: Dec 15, 2021

Common Ways People Hide Assets

A party attempting to hide assets or diminish their financial position during a family law dispute is a common complaint. The most common occurrence of an ex is trying to minimise or deplete the matrimonial pool of assets are:

withdrawing or transferring significant amounts of cash from the joint account and into an unknown account
suddenly repaying undisclosed large loans
transferring of ownership of real estate or other assets to third parties or relatives
diminishing the value of their share as a beneficiary in a trust

If you and your ex have not commenced court proceedings and you are facing issues with a difficult ex who refuses to disclose their financial position, you should first consider instructing a lawyer to write a letter to your ex requesting full and frank financial disclosure. If your ex continues to refuse the requests made by your lawyer, then unfortunately you will need to file court proceedings.

Duty to Disclose

The parties are required to provide financial disclosure documents to the other party, and this obligation is ongoing. Read Schedule 1 of the Family Law Rules 2004. As a general guideline, you and your ex should exchange the following financial documents:

3 most recent tax returns & notices of assessment
bank account statements for the last 12 months (use the official PDF statements issued by the bank. Do not download the transactions as a list in an excel spreadsheet).
3 most recent payslips
copy of employment contract
business activity statements for the last 12 months if a party owns a business
superannuation statements
market appraisals of assets such as real estate, jewellery and motor vehicles
3 most recent annual financial statements and returns, constitution and amendments for a company that a party has control
3 most recent annual financial statements and returns, trust deed and amendments for a trust that a party has control
3 most recent annual financial statements and returns, trust deed and amendments for a partnership that a party has control
any other documents showing a person's assets, liabilities, superannuation entitlements and financial resources

Practical Tips to Collate Financial Disclosure Documents

The above list can appear quite daunting and an overwhelming exercise. A practical few tips in collating the documents:

Break down the documents into categories and collate them over a few days. For example, Day 1 - download your tax returns and notices of assessments, employment contract and 3 payslips.
Download and save documents in PDF format.
Label each document appropriately. For example, a bank account statement from Commonwealth Bank of Australia savings account with account number ending 0123 for January 2021 labelled as "CBA A/c 0123 Jan 21"
Organise documents in their folders. For example, all statements from the same bank account should be saved in one folder.
Review and check that all documents have been downloaded. This is to avoid your lawyer chasing you for missing pages or documents which will minimise your legal fees.
After collating the documents, you should zip or compress the folder and email it to your lawyer or directly to the other side (if you do not have a lawyer). If the attachment is too large to send, separate the folder into a few folders and send it in multiple emails labelling them appropriately. For example, Email 1 of 3, Email 2 of 3, and Email 3 of 3.

As the matter progresses, you should continually provide an update on your financial position. A good rule of thumb is every 6 to 12 months to conduct a financial disclosure exercise.

If there are no substantial changes to the parties' financial positions since the initial financial disclosure exercise (other than the changing balance of the everyday account to pay bills), most parties are satisfied with adopting screenshots of updated current balances of accounts.

Subpoena

If your ex is not forthcoming about documents that you have requested, you can bring it to the attention of the Judge or simply file a subpoena for those documents. The subpoena bypasses the co-operation of your ex and it is an order for a third party entity to provide the requested documents to the Court.

However if the subpoena is not relevant and it is just a fishing exercise, your ex can object to the subpoena. Therefore you should only seek documents that are relevant to the case.

The most common subpoenas in property are:

Banks
Employers
Accountants
A business/company, trust, or partnership

In some situations, you or your ex will not have access to some documents requested because the documents are controlled by a third party. A jointly written letter with your ex seeking those documents should suffice, and if not, then issue a subpoena requesting the documents.

Injunction, Restraints and s106B Family Law Act

If your ex transferred the ownership of assets to a third party such as a family relative without any payment (or consideration), your lawyer should argue that the transfer is reversed by an Order of the Court where the asset is included back into the matrimonial pool of assets. A Judge will have the power to make such an order under section 106B Family Law Act 1975 (Cth). The purpose of this power is to reverse transactions that were made to defeat a family law claim.

If you suspect that your ex will transfer assets outside of the matrimonial pool of assets, your lawyer can seek an injunction order. This is an order restraining your ex from making any transfers as specified in the injunction. This is more common with real estate where only one party of the relationship is the owner on the Title Deed. The injunction would be a restraint on the owner from dealing with the property in any way other than by the order of the Court or by written consent with the other party. Normally there would also be an additional order restraining the party from increasing the mortgage owing on the property so that the owner cannot unilaterally diminish the equity in the property.

Discovering Hidden Assets After An Agreement

In the event that you and your ex have reached an agreement relating to a property settlement and you discover later on that your ex did not disclose a significant asset at the time, you should argue to void the agreement under fraud. The parties are obliged to disclose their true financial positions to the other party.

Therefore we recommend that you are as upfront, honest and transparent about disclosure as possible. If a person is difficult, makes excuses or refuses to give information or documents to do with their financial position, suspicion and animosity will build which prolongs and exacerbates the dispute and litigation. Unfortunately, ongoing non-disclosure will unnecessarily increase the parties' legal fees and drag the case out in court.

*** Disclaimer:

Information on this website or post does not constitute legal advice and that electronic dialogue with readers does not constitute any form of client engagement unless specifically agreed.

The information is provided on a general basis only. We strongly recommend that you seek your own independent advice from a lawyer about your situation.

Frequently Asked Questions