The Ex-Files: Jeremy Sutton on whether you need to tell your ex about your bank accounts

Do you have to tell your ex about all your bank accounts? Photo / File

OPINION:

Q: My ex-partner and I are going through a difficult divorce. During our relationship, we kept separate bank accounts. I have disclosed my bank accounts to her, but she is refusing to provide any details regarding her accounts; she claims they are not relationship property. The division of our assets is now at a standstill. I want to get on with my life and finalise everything so I can move on. Am I entitled to her bank account information and is there anything I can do to get her to disclose it?

Yes, you are entitled to disclosure of your ex-partner’s bank accounts even though you have maintained separate bank accounts over the course of your relationship.

It is possible that funds held in bank accounts are separate property if they:

1. Existed prior to the relationship and have not been “intermingled” (ie mixed) with funds that are classed as relationship property; or

2. Are inherited; or

3. Are from income generated from separate property such as a pre-relationship or inherited investment property.

Even if your ex-partner considers the accounts to be her separate property, she should provide documentation to confirm why this is the case. For example, in scenario one above, a bank could provide a letter or statement confirming the date the account was opened (which should be pre-relationship if separate property) and confirming that no additional funds have been transferred into the account over the course of the relationship.

Where both parties are working, their income (deposited into bank accounts) will be classified as relationship property. Therefore, unless your ex-partner is retired or unemployed, the likelihood is that at least some of the funds held in her bank account/s will be relationship property.

The usual practice is that through lawyers, parties exchange details of all bank accounts as at the date of separation. The balances of those accounts are adopted in the calculation of the overall division of relationship property assets.

It is unclear from your comments whether you and your ex-partner have legal representation. I recommend you instruct lawyers now if you have not done so. Your ex-partner needs to have the legal position regarding disclosure clearly explained to her. Full disclosure must be provided before any settlement agreement is signed and failure to do so may result in the agreement being set aside. She may be more forthcoming in providing the bank account statements. You cannot avoid instructing lawyers if you want to have a binding separation agreement signed given the requirement that you each have independent legal advice.

As a first step then, I suggest you have a lawyer write to your ex-partner requesting that she provide full disclosure (including disclosure of any bank accounts she considers to be separate property).

What if she still won’t provide bank account statements?

There are two options:

You can file an application for early “discovery”. This is a court application that is very limited in scope: it just requires your ex-partner to provide the documentation you are seeking, in this case, bank accounts.

Alternatively, you could file a substantive application to divide the relationship property. When your partner files her response she would need to complete an affidavit of assets and liabilities in which she is effectively required to provide full disclosure: all bank statements in her name (sole or joint) will need to be listed, together with evidence of those accounts. If, after receipt of this you still believe your ex-partner has bank accounts she has not disclosed, then an application for discovery could be made after the proceedings have commenced.

View of Judges

Judges will not usually grant discovery where it appears the person applying is on a “fishing expedition”; there needs to be some evidential basis for the request for discovery. In more difficult cases, clients will engage a forensic accountant to help identify why it appears there are gaps in the documentation the other party has provided.

Costs

There is a cost to filing any application in the Family Court but if you are successful in your application then you can seek to recover some or all of those costs from your partner.

The importance of disclosure in relationship property cases

Full disclosure is a cornerstone of the New Zealand relationship property regime. Without the provision of full disclosure by both spouses/partners there cannot be an equal division of the relationship property pool. Both lawyers and judges tend to take a firm view on the issue and have little tolerance where it appears proper disclosure has not been made.