Key Takeaways:
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- Hiding assets involves a person deliberately hiding or failing to disclose their assets and property in an attempt to make their financial position look less significant.
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- Motivations for hiding assets include wanting to influence the outcome of a property settlement and retain more assets, reduce support obligations and/or wanting to exert power or control over someone else.
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- The family law system in Australia emphasises the importance of disclosure to ensure legal matters are resolved fairly.
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- Hidden assets can be unveiled through various means including working with a family lawyer.
When a marriage or de facto relationship ends, one of the most challenging matters that needs to be resolved is how you will divide the assets and property of the relationship.
Financial matters can be quite overwhelming to deal with because a lot of factors need to be considered.
They are made even more complex when one party is not being truthful or is purposely trying to avoid showing their real financial circumstances.
Unfortunately, while many people manage to follow the Australian family law system and disclose all of the relevant information that makes it possible to resolve family law financial matters correctly, there are people who attempt to thwart the law by hiding assets.
In this article, we’re going to discuss the concept of hiding assets in a divorce. We’ll talk about why people hide their assets and some signs that may indicate that this is occurring. We’ll also discuss disclosure, how hidden assets can be uncovered, and how you can protect your assets too.
What do we mean by “hiding assets”?
“Hiding assets” refers to when a person or even an entity deliberately hides or conceals their assets and property to deceive others and make their financial position look less significant than it actually is.
Hiding assets could also include failing to disclose details about their property and assets, and it can occur in a variety of contexts, including business deals, taxation matters, and most commonly during the property settlement process of a divorce or separation.
Various tactics can be used to try to hide assets, like selling property, transferring assets, and having multiple bank accounts, and if someone is caught trying to hide assets they could face significant legal consequences.
Why do people try to hide assets?
There are many reasons why someone may try to hide their assets during the separation and/or divorce process. Some of the most common reasons include:
To retain more assets
One of the most common reasons a person may try to hide assets is to avoid having some assets be subject to a property settlement and instead be able to keep more assets. The logic behind this is that if the other party is unaware of the assets they cannot be up for division, and then the person hiding the assets may still have a decent share of the remaining assets in the property pool.
To seek revenge or punish their former spouse
A marriage or long-term de facto relationship ending is not a pleasant situation and for many people, it can be an emotional time where it can be hard to be rational. If a person feels like they have been wronged or is angry, they may be desperate to punish their former spouse.
To financially control their former spouse
An unfortunate reality is that abuse happens in many ways, including financially. Financial abuse is when a person uses money or other financial resources as a way to control and manipulate another person. It can happen between all kinds of people, including friends, family members and spouses. It can manifest as withholding money, controlling access to finances and hiding assets.
To reduce potential support obligations
In some instances, a person may be required to pay spousal maintenance after the breakdown of their relationship. This can occur in situations where one spouse is unable to adequately support themselves and the other is able to provide this support. Reducing the size of their asset pool may give the impression that they are not in a position where they can provide support and thus will not have to pay spousal maintenance. Learn more about spousal maintenance here.
Due to a misconception about the family law system
There are many misconceptions about the family law system in Australia, including that property division has to be 50/50 and that the system favours women. The family law system has been designed to take into consideration many different factors that can influence the outcome of a matter. However, as these misconceptions are quite common, some people may attempt to hide assets to overcome these perceived obstacles.
Do not realise they are doing it
It is possible for someone to not even realise that they are not disclosing information or that they are hiding assets. This commonly occurs when a person doesn’t understand what is considered to be an asset or that the property and assets that are considered as part of a property settlement are more than those that are jointly owned.
How do people try to hide assets?
Many different methods and tactics may be used in an attempt to hide assets. Below, we’ve listed some common signs that could indicate that a person may be hiding assets:
Reluctance to provide financial information
The way the finances work in a relationship is different in every situation, however, if your partner does not allow you to have access to any financial information like accounts and bank statements or suddenly changes access details or other financial information, this could be an indication of someone attempting to conceal their financial position.
Large or regular cash withdrawals
While it is normal to transfer and move money around in your bank accounts, if large cash withdrawals are frequently being made or regular unexplained transactions are occurring, this could be an indication of suspicious behaviour. They may be withdrawing the money to conceal the total value.
Unusual business activity
If one or both of the spouses own a business and there are drops in income or increases in spending that are unusual and/or inexplicable, this could be a sign of asset concealment. The transactions may be used to alter the value of the business which could have an impact on the division of other assets.
Delaying financial transactions
Whether it’s a transaction such as receiving a bonus or commission payment, a change in contract, where there is an increase in income, or payment for a job, another tactic that may be used is that the party attempting to conceal assets may delay accepting these payments to ensure the overall value of the asset pool is lower and these assets are not included.
Overpayment of taxes
It’s possible for a person to pay more in tax in an attempt to reduce the amount of money they have now and receive that money when they do a tax return, which could be after their property settlement has been finalised.
Missing property and assets
Physical assets that are valuable such as art and jewellery may go missing. This could be in an attempt to hide anything of value.
Please note that while these behaviours could indicate that someone is hiding assets, it doesn’t necessarily mean that that is what is occurring. There could be legitimate reasons behind the behaviour.
If your spouse is engaging in any of these and they are unable or unwilling to provide an explanation, you can seek legal advice.
What does the law say about hiding assets?
Throughout legal proceedings of any kind there is a duty of disclosure, which means that you have an obligation to provide any information that may have an impact on the outcome of your matter. The duty of disclosure is an ongoing obligation until your matter is finalised.
In the family law system, information about the duty of disclosure is provided in the Federal Circuit and Family Court of Australia (Family Law) Rules 2001. There is also an obligation for those involved in family law proceedings to file a written notice that they have read this information about the disclosure process and that they are aware of its meaning. You can learn more about the duty of disclosure here.
Failure to comply with the duty of disclosure can have legal consequences that are quite significant in nature. We will discuss these consequences shortly.
Why does disclosure matter?
Disclosure is extremely important as not having all of the relevant information can make it exceptionally difficult to achieve outcomes that are fair to all parties.
The Australian family law system has been designed to be as fair and balanced as possible. Matters are able to be resolved by taking a wide variety of factors into consideration which allows solutions that suit the unique circumstances of each situation.
Financial matters that could be affected by the disclosure of assets and property, like a property settlement, take many different factors into consideration to achieve fair and just outcomes. Some factors include the contributions of each party, both direct and indirect, the assets each person brought into the relationship, their ages, health, income and future needs of each party.
A lack of financial disclosure can also result in court proceedings and legal matters taking longer to resolve or decisions being overturned or challenged in the future if information becomes available.
What are the consequences of non-disclosure and hiding assets?
If a person is found to be deliberately hiding assets by failing to disclose information, there are a number of different consequences they could face.
In some instances, the person hiding the assets may be ordered to pay the legal costs of the other party, or they could face even more serious consequences like imprisonment.
The property settlement could also be adjusted to favour the other party, and in circumstances where a final property settlement order has been made, the other party could apply to have the orders set aside or varied.
How can hidden assets be uncovered?
There are numerous options available to people if they believe that assets are being hidden as part of their property and financial settlement.
You can engage the services of a professional forensic accountant or private investigator to help uncover hidden assets.
However, we highly recommend seeking legal advice from a family lawyer experienced in divorce, separation and property settlements. Family lawyers tend to have experience in analysing behaviours and documents to look for signs that are consistent with asset concealment. They also have access to resources, tools and networks that can help in these situations too. You also have the added benefit of having the family lawyer to work through the property settlement process too.
What should you do if you suspect that your ex-spouse is hiding assets?
If you’re genuinely concerned that your ex is hiding assets, seek legal advice as soon as you can. A property settlement is already a difficult process and if someone is engaging in this type of behaviour it can make the process even harder.
As family lawyers, we understand the tricks that people use to hide assets and identify these issues a lot faster than people who do not have experience in this area. We can work closely with you to understand your situation and uncover any shady tactics that are potentially being used so that you can get a property settlement outcome that is right for you.
Is there a way to protect assets legally?
If you’re entering into a de facto relationship or marriage and you have certain assets that you wish to protect in the event that you do decide to end the relationship, there are things you can do.
Legally binding agreements like prenuptial agreements and binding financial agreements can help to establish boundaries and expectations if the relationship ends. These agreements can be tailored to include only certain specific assets or they may cover a wide range of things, but they can be unique to your situation.
These agreements are generally legally enforceable if they have been made lawfully, however, there are situations where they could be overturned or challenged in court. For example, if the agreement was made under duress, there was misleading information, or there was not full and frank disclosure, this could give grounds for the agreement to possibly be overturned. An example of a BFA being challenged and then overturned is the case of Thorne vs Kennedy, which you can learn more about here.
Worried about your assets?
At Unified Lawyers we understand how stressful and overwhelming a separation or divorce can be. You are going through a lot of changes and when there is a lack of trust, such as you suspect that the other party is hiding assets, it can be even more overwhelming.
We’re here to help you. Our family law firm is here to provide advice, guidance, support and representation when you need it for your family law matter and our services are available Australia-wide and at any time.
Talk to us today by calling 1300 667 461 or book a free consultation using the button below.
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