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1. Protect your assets
- You might have joint accounts with significant funds, loans accounts or amounts or offset accounts from which funds can be drawn. Make sure that neither of you can redraw or transfer funds without the authority of the other.
- If your spouse takes money, it could be spent by the time you affect a property division. you get to court and seek to get it back. Prevention is better than cure.
- Control your credit card risk. If you have a credit card in joint names, or your spouse/partner has a secondary card in your name, consider cancelling access or reducing the limit to a level with which you are comfortable.
- Importantly, however, you must not act to deprive your spouse (or any children) of access to funds for their reasonable living expenses.
2. Your assets at the time of trial or agreement are used by the Judge or your solicitors
- It is a common misconception that the property pool at separation is what is available to be divided between you and your partner. However, all property of each of you or any entity in which you have an interest or control forms the property pool until the Court, or parties by consent, determine the settlement.
- However, factors that complicate this process are:
- Post-separation contributions and acquisitions.
- Post-separation income; and
- Add-backs (assets sold or wasted since separation which a party attempts to addback into the property pool for division between the parties). Addbacks however are an exception and not the rule.
3. Who controls the entities?
- You need to be aware of who are the directors of companies, trustees, and appointors of trusts. If only one spouse is the director of a company, that person can terminate the other’s access to a company bank account.
- Superannuation is included in the property pool.
- Superannuation from one spouse’s account can be split and added to the other spouse’s superannuation account.
5. Company money is not your money
- If money is in a company bank account, it may not be as simple as just withdrawing it and spending it. By doing so, you might be causing a tax issue, breaching your director’s duties and you may be ordered to repay it.
6. It’s just 50/50, isn’t it?
- Maybe it is. A division of property could be anywhere between 0-100%. It depends on contributions and other relevant factors to be considered with a court’s broad discretion. Your lawyer cannot give you an exact answer as to your entitlement but can provide you with a range of entitlement.
7. Documents are evidence
- Keep all emails and communication between you and your spouse. Make sure you keep or can obtain all financial documents which you will need so as to determine the property pool.
- Do not access your spouse’s email or open mail addressed to your spouse without authority.
- Do not destroy documents.
- If you suspect your spouse may hide assets, documents will be important to evidence such assets.
- You and your spouse have a continuing obligation to make full and frank disclosure of all financial disclosure.
8. Prenups can work
- Financial agreements can be drafted before marriage, during your marriage or after separation.
- You can also have a financial agreement if you are in a de facto relationship.
9. De facto relationships are like marriages
- If you live with someone for two years in a relationship (or have a child together or make substantial contributions to their assets) you may be entitled to a property settlement.
10. Informal agreements
- Paying any sum of money to your spouse in the belief that it will be part of a property settlement is not advisable without legal advice.
- Do not assume that you and your spouse will abide by any informal agreement reached between you.
- Only a Court Order or a Financial Agreement can be enforced.
These tips apply to property matters only.
These are common problems and queries clients often ask. However, each client has individual circumstances which should be addressed in a fixed fee appointment with one of our Family Law Lawyers.
You may need advice about:
- Divorce (ending your marriage)
- Property Settlement (dividing your property)
- Revoking your Power of Attorney.
- Changing Wills and superannuation fund nominations
- Lodging a caveat (so property cannot be sold without your consent)
- Severing joint tenancies (for jointly owned property)
Our experienced family lawyers at South Geldard Lawyers in Rockhampton can help.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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