The matter of disclosure and making informed decisions was raised in the recent case of Nyles & Nyles  FamCA 565 whereby the husband sought to set aside Orders on the basis of the wife failing to disclose pertinent financial information.
The facts of the case were that the wife was a director and shareholder in a company which was possibly going to be placed on the public market. If this was to occur, the wife stood to receive significant financial gain. Despite this, the husband and wife entered into consent orders prior to the information relating to the public float being available.
The husband sought to have those Orders set aside on the basis that the wife failed to make full and frank disclosure and fraudulently misled him into entering into Consent Orders. The wife denied she did not make full disclosure and that she did not misrepresent the husband in relation to the float of the company.
The first question before the Family Court of Australia was whether the wife misrepresented her financial position to the husband. The Court found that the wife did engage in fraudulent conduct by failing to disclose updated financial information about the company float.
The next question before the Court was, did the husband who relied on the misrepresentation of the wife result in a miscarriage of justice enough for the Orders to be set aside?
The Court did not believe that the husband relied on the information that was provided to him by the wife to make his decision to enter into any agreements. At all material times, the husband was aware of the float and was provided with adequate legal advice.
This case illustrates two main points. Firstly, you must disclose all information particularly in the event that something material changes in your circumstances.
Secondly, you can make a decision prior to obtaining financial disclosure information, but it is not in your best interests to do so. The husband in this case may have been successful in his application had he waited for all information.
If you are considering separating or have separated and you need financial disclosure, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you.
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