My Spouse is Hiding Assets – What Can I Do?

Published on December 1st, 2020 and updated on August 19th, 2021

In many cases, when a marriage starts to deteriorate, spouses start doubting their partner’s intentions and may even be afraid of the spouse hiding assets. This suspicion can arise for many reasons, such as exclusion or the lack of involvement in financial management during the relationship by one spouse. When this fear is justified, it could mean legal problems later on if there was no prior agreement detailing these specifics before things started going downhill with your ex-partner.

If you’re concerned that your spouse may destroy evidence of wrongdoing, there are laws in place that can be filed against them. You may be able to apply for an Anton Pillar Order, which allows authorised representatives on behalf of both parties to enter each other’s properties to preserve potential relevant material-even during separation proceedings!

In addition, you may also need to ask questions specific to where the missing money is going or if your spouse has been withholding assets. For example, income and property can be cleverly hidden and not declared by your partner during and before settlement negotiations. It is usually the wealthier party or the person with a high level of control of the finances that will attempt to hide cash and other assets in an attempt to reduce the asset pool so as to keep more property and assets for themselves and prevent a fair financial settlement.

Family law matters often involve complex corporate structures, and it is not uncommon for one party to assert that the other is hiding assets ‘behind a corporate veil’.

Case Law For Hiding Assets in Divorce

In the matter of Atkins & Hunt and Ors [2020] FamCAFC 252 (9 October 2020), the Full Court of the Family Court of Australia considered the issue of when it is established that a company is a ‘mere puppet’ or ‘alter ego’ of a party, and when the family court ought to treat a party and company as one and the same.

This matter was an appeal of final orders made on 18 December 2019 that divided the parties’ assets 80% / 20% in the husband’s favour. In effect, this required the husband to pay the wife $964,693 and for the parties to otherwise retain the assets in their respective names, possession, or control.

The matter was first heard on 4 December 2014. However, the wife successfully appealed those orders, and the family law matter was remitted for re-trial.

The husband operated a business X Pty Ltd. Half of the class A shares in X Pty Ltd, which entitled the holder to have exclusive control over the company, we’re owned by the husband. The remainder of the class A shares were held by the company Y Pty Ltd. The husband owned 99% of Y Pty Ltd.

Whilst the first appeal was pending, the husband disposed of the majority class A shares held by him and by Y Pty Ltd into X Pty Ltd, giving them to his children for modest financial consideration.

The wife alleged that the corporate structure of X Pty Ltd was the “alter-ego” of the husband and that the disposing of the shares was done to defeat an anticipated property settlement. It was agreed at re-trial that the value of the husband’s share in the entity had the transfers not taken place would have been $5,993,000.

The wife also argued that “the husband’s control over [the entity] means that its full value should still be ascribed to him on the balance sheet” [paragraph 17]. The wife was unsuccessful in arguing this. The family court also held that, recognising that X Pty Ltd as a separate legal entity means that it could not be a “mere puppet” or “alter ego” of the husband.

Whilst it was ultimately held that the husband had transferred the shares in an attempt at withholding assets during a divorce and defeating an anticipated claim by the wife, the wife was not successful in arguing that the entity was a “mere puppet” or “alter ego” of the husband. Accordingly, she appealed.

Appeal 2.0

The first ground of the wife’s appeal was that the trial judge erred in not finding that companies X Pty Ltd and Y Pty Ltd were the ‘alter ego’ of the husband. The wife also asserted that the primary Judge erred in that he did not make an adverse inference from the husband’s (and other respondents’) failure to lead certain evidence.

At paragraph 33 the Full Court stated “The wife… focussed on the capacity of the husband to control [X] Pty Ltd as demonstrating that the company and the controller should be treated as one and the same.” This argument was, however, rejected, with the court concluding that “something more than mere control is required.”

In considering the wife’s contention, the Full Court referred to the original trial judgment of Bryan CJ and Murphy J, stating that establishing an ‘alter ego’

“does not devolve from the indicia of control by a shareholder; corporations, where considerable control is vested in a particular shareholder, do not per se forego their separate personality. Rather, the concept refers to the company having no existence and direction separate from that of the relevant shareholder” [paragraph 32]

At appeal, the onus was on the wife to prove that the company was a mere puppet (Ascot Investments Pty Ltd v Harper (1981) FLC ¶91-000; (1981) 148 CLR 337). It was therefore incumbent upon the wife to call evidence in support of her claim that the directors did everything the husband told them to do. The wife contended that an adverse inference could be drawn of the husband’s failure to produce evidence to the contrary. This was rejected.

Why Does This Case of Hiding Assets in Divorce Matter?

Separation can be difficult, and matters involving corporate structures require a comprehensive understanding of the asset pool. It’s important to get advice early on in order to make sure you ask the right questions, have all your bases covered and ensure your ex partner is not concealing assets prior to a financial property settlement.

The matter of Atkins & Hunt and Ords provides an important example of the difficulties and arguments that may arise in matters involving corporate entities (and in particular family members).

If you are considering the process of how to divide your asset pool or have concerns your spouse is concealing assets prior to separation and divorce, it is important that you get legal advice early. The process can be complex and time-consuming without the right guidance or legal representation on your side.

Talk to a Family Law Specialist

Don’t let anything slip by if you are concerned your spouse or partner is hiding assets. Contact our friendly team of experienced property settlement lawyers today if you would like to discuss your options on, 03 9070 9839 or info@sagefamilylawyers.com.au

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