Failure to disclose – Variation of Final Property Settlement Orders

Variation of Final Property Settlement Orders

When settling a property order (in court or through negotiation), both parties must give full and frank disclosure of their assets and income. Disclosure must reflect ones current financial situation, not what they were.

Full disclosure must include:

Once made, property orders are deemed to be final. If both parties consent, orders can easily be varied or set aside. However, in absence of mutual consent, the court only has a discretionary power to vary orders in limited circumstances. This can occur on the ground that there has been a miscarriage of justice by way of the suppression or falsification of evidence. For example, the court is likely to vary a property order where one party has failed to disclose financial information which would have influenced the division of property. The failure to disclose does not need to be deliberate. The court has found accidental falsification to cause a miscarriage of justice. If an order is varied or set aside, the party who failed to disclose may be order to pay whole or part of the other parties legal costs.

While it is possible for the court to vary, it is vital that you enter into a property order ensuring that full and frank disclosure has occurred. Variation is a discretionary remedy. The court may choose not to vary orders even if there was a failure to disclose by one party.

Seeking legal advice prior to forming a property order will assist in ensuring that you and your ex-spouses assets are distributed fairly. If you need advice before forming a property order or are seeking to vary a property order, please contact us.  

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