the party who wants the consent order revoked will have to show that the hidden assets
fraud and suppressing evidence
The majority of property settlements based on mutual agreement, whether they are to do with the breakdown of a matrimonial or a de facto relationship, are filed by the use of a Consent Order. The parties involved are not compelled to obtain legal advice before the documents are signed.
A Consent Order records and documents how the parties have reached agreement in relation to the division of their assets, which could include bank accounts, real estate, shares, cars and superannuation. The parties need to know that as soon as the Consent Order has Court approval the property settlement is considered finalised.
It is just about impossible to open up a finalised property settlement, so it is of great importance when signing off takes place that you are completely satisfied that this is what you want in the long term.
A “Section 79A Application” under the Family Law Act when sent to a court is used when a party tries to reopen a finalised property. Section 79A is a provision in the act that can allow a final property settlement Order to be re activated.
Section 79A can be used by a litigant if there is evidence available that duress, fraud, false evidence and suppression of evidence took place when the property settlement was finalised. This normally means that lies were told by the other party lied in relation to assets such as concealing the presence of a bank account.
To be able to meet the expectations of Section 79A is not easy.
The party who wants the Consent Order revoked will have to show that the hidden asset whether it is in the form of shares, real estate or bank accounts was so substantial that not to set aside the Order would be unjust. To reopen a consent order on these grounds may be difficult if the party failed to investigate the other party’s assets when he or she had the chance to do so.
A good example would be if the accused party discloses that he or she has a business interest but says it is of little value and after the consent order has been signed it is found that the business interest is quite substantial. The Court might not allow the re opening of the case on the grounds that a complete and documented investigation should have been carried out before the Consent Order was signed.
If a party was forced (duress was used) to sign the documents for the Consent Order
it is difficult to provide good enough proof unless the person’s life was threatened. This doesn’t mean that courts never set aside property Consent Orders - it is just that the demands they make often exceed the plaintiff’s chance of meeting them.
There are quite a lot of things to consider when trying to re open a Consent Order for a property settlement. The opportunity is without a doubt there, but the party taking this on will need to be sure the money is substantial enough to carry the weight of the costs of the as legal costs could be extremely high and if the attempt fails then the other party’s costs will have to be paid too.
If you really think it’s of economic benefit for you to apply to re-open a Consent Order of a property settlement, seeking legal help first will ensure you are doing the right thing.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.