If you are separated and looking to obtain a final property settlement, the very first step you will be required to take is to identify the matrimonial asset pool. This involves identifying each of your respective assets, liabilities, financial resources and superannuation interest in order to ascertain the net assets that are available to be divided between you and your former spouse. But what happens when you and your former spouse are unable to agree on the value of one of your assets? This 'stale-mate' can not only lead to increased conflict between you and your former spouse but also impact your ability to progress your matter and secure an outcome.
In order for you and your former spouse, or for the Court, to determine the most appropriate way to divide your assets and finalise your property settlement, it is first necessary to know, and agree upon the value of each of your assets and liabilities.
For some assets, this issue can be resolved relatively easily by exchanging financial disclosure documents such as bank statements and superannuation statements. These documents clearly specify the value of your interest and can limit the opportunity for disagreement. For assets without an easily ascertainable value such as real estate or a business interest, it can be more difficult to reach an agreed value with your former spouse.
In circumstances where you and your former spouse are unable to reach an agreement in relation to the value of an asset, you will be required to obtain expert evidence in the form of a report from a qualified expert in the relevant field. Experts which are commonly appointed include real property valuers, forensic accountants and art and chattels valuers. Where expert evidence is required you can either appoint an expert jointly with your spouse – a Single Joint Expert or engage an expert to value an asset on your behalf alone – an Adversarial or "Shadow" Expert.
Single Joint Expert
In circumstances where you wish to jointly appoint an expert, you and your spouse will need to agree on the appointment of the particular expert and prepare a joint letter to provide your instructions as to the scope of their valuation report. Once engaged, the expert will make the appropriate searches and enquiries in order to assess the asset and prepare a comprehensive report setting out their opinion as to its value. Single Joint Experts have a duty to provide an independent and impartial opinion and accordingly, they can be helpful in providing an objective expert opinion for parties that are struggling to agree to the value of an asset.
Adversarial or "Shadow" Experts
If you are unsatisfied with the value proposed by the Single Joint Expert, you will be pleased to know that you have the opportunity to ask the valuer to clarify any questions you have about their report and the valuation methodology they have adopted within 21 days following the receipt of the expert report.
In circumstances where the valuer's response does not resolve your concerns in relation to the value given by the Single Joint Expert, you may seek to appoint an Adversarial or "Shadow" Expert.
Adversarial or "Shadow" Experts are experts that are appointed by one party alone, and their role includes advising their client and reviewing or critiquing, the report of the Single Expert Witness.
An Adversarial Expert can be of great assistance in complex matters however; there are rules for adducing the evidence of an Adversarial Expert in circumstances where their valuation, and the Single Joint Expert's valuation differ.
Rule 15.49 of the Family Law Rules 2004 provides that the Court must be satisfied that there is a substantial body of opinion contrary to the opinion of the Single Joint Expert, that the Adversarial Expert has access to facts that the Single Joint Expert did not have access to, or that there is another special reason for a Shadow Expert's evidence to be accepted.
Expert evidence can be critical in successfully navigating your matter and obtaining a favourable property settlement. The lawyers at Swaab have significant experience dealing with Expert evidence and have strong relationships with highly regarded experts such as real estate valuers, forensic accountants and chattel and artwork valuers.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.