Separation can be a difficult time for lots of people. It can be taxing emotionally and, in some cases, financially as well. There’s a lot of stress associated with separation and sometimes it can be confusing to know what to do. One of the things that needs to be done after a separation is a financial settlement, sometimes called a property settlement. At Lynn & Brown Lawyers, we have a team of highly experienced Family Lawyers who can help you work towards a financial settlement.
Your asset pool
When considering a property settlement, you and your ex-partner must disclose all of your assets (joint and separate), liabilities and financial resources that make up the asset pool which will be subject to division.
It is important to note that your asset pool is taken at the time of settlement, not at the time of separation. This means that any assets or liabilities obtained or disposed of after separation, but before settlement, must be disclosed and may be subject to division. For example, if you purchase a highly valuable piece of artwork after separation, or if your ex-partner incurs a big credit card debt, that will all become part of the asset pool.
Securing your asset pool
For the reasons expressed above, it is important to know how to secure your assets after separation. You want to do everything in your power to make sure your ex-partner does not deplete the asset pool – either by decreasing the value of the assets or by increasing the value of the liabilities.
In this regard, an important thing to consider is how quickly you obtain legal advice after separation. We understand it can be a stressful time and financial settlement might be the last thing on your mind shortly after a relationship breakdown, but we recommend seeking legal advice sooner rather than later, to minimise the chance of asset pool depletion.
There are many types of assets, liabilities and financial resources. Below are some of the most common assets and liabilities in family law matters:
Cash
With regards to your cash and bank accounts, these are some things you should think about:
- Find out what bank accounts you have – both jointly and in your sole name.
- Who has authority to withdraw money from those accounts?
- For joint accounts, you may want to inform the bank that you and your ex-partner have separated and ask them to put mechanisms in place to prevent, or put a limit on, the withdrawal of money from the account(s).
- Remember to think about electronic access to your accounts as well – you may want to change passwords.
- Do you have oversight of your ex-partner’s accounts? Do they have oversight of yours? Although you will have to provide disclosure of your bank statements in due course, you may not want your ex-partner to have a live update of your spending. This could be for many reasons, one of which being for your safety.
Real estate
If your property is in joint names, your ex-partner cannot sell or transfer the property without your authority. However, your ex-partner may be able to draw down on the mortgage (discussed below) or incur debts and have those debts secured by way of caveat against your property. If your ex-partner allows a third party to lodge a caveat on the property, Landgate will send notification to the owners. It is worthy to note that once a caveat is lodged against the property, the Landgate notification is usually send to the property address that is subject to the caveat or the registered address on the certificate of title for the owners. If you do not reside in former home, you are unlikely to receive the notification if your ex-partner does not let you know. If this occurs, you should seek legal advice.
If the family home is in the sole name of your ex-partner, you may want to consider putting a caveat on it to prevent them from dealing with it without your knowledge. Currently there is no family law caveat, however, we anticipate this may be coming in the future. You must have a “caveatable interest” to lodge a caveat on the property. There are serious consequences if you lodge a caveat on the property without proper basis. We recommend seeking legal advice if you are in this position.
Further, if you have a reasonable basis for believing your ex-partner may sell your property, you can apply for urgent court proceedings seeking orders prevent the sale of the property or otherwise the proceeds of sale be placed in a trust account pending an agreement or Court Order.
Valuables
If you have any art, jewellery, antiques, or anything else of significant value that can be sold for cash, make sure it is in your possession and it is safe. As outlined above you are able to lodge an application with the Family Court seeking urgent hearing if you have a reasonable basis to believe your ex-partner is going to sell your property, you can do the same for valuable possessions.
Superannuation
Superannuation is deemed as property for family law purposes. Superannuation can be split between married couples as a part of property settlement. Essentially this means one party can give some of their superannuation entitlement to the other party’s superannuation fund. Unfortunately, in Western Australia, de-facto couple are not able to split their superannuation following a separation. On 25 October 2018, the Federal Attorney General, Christian Porter, announced that the Federal government and the State government have agreed to bring the legislation in WA in line with the rest of the country by permitting de facto couples to split their superannuation following separation.
On 27 November 2019, the Federal Attorney General’s office issued a media statement stating that the Federal Government is introducing a new bill into the Federal Parliament on that day, being the Family Law Amendment (WA De Facto Superannuation Splitting and Bankruptcy) Bill 2019, to enable superannuation split for de-facto couple. This Bill is yet to be accepted by the parliament and become a law.
You may wish to review your binding death nomination on your superannuation following a separation. When you pass away, your super fund will give your super to whoever you have nominated. If you die after separation and you forget to change this, your ex-partner may receive your superannuation entitlements.
This is also a reminder to update your Will. Given that you and your ex-partner have separated, your wishes are likely to change as to who you wish to be the beneficiary of your Will. For married couples, it is worthy to note that any existing Will may be invalidated once the parties are divorced (unless the Will specifically deals with divorce). It is highly recommended that you update your Will, Enduring Power of Attorney, Enduring Power of Guardianship following a breakdown of relationship. At Lynn & Brown Lawyers have a team of Estate Planning Lawyers who can help you with updating or obtaining a new Will and estate documents.
Credit cards
If you and your ex-partner have a joint credit card, find out whether it is in fact a joint account or if you are simply a secondary card holder. Additionally, you may want to find out whether your ex-partner is able to cancel your credit card without your authority. If possible and practicable, we recommend cancelling all joint credit cards, however, we recognise that this may not always be practicable.
Mortgage
You should review or become aware of what type if mortgage you have against your property. Some if there is a “drawdown facility” on your mortgage loan, then one party can withdraw funds or use funds from the mortgage loan, and this increase the total mortgage loan amount. For example, if you have a mortgage of $300,000 with drawdown facility of $50,000, your ex-partner may take out the $50,000 and use those funds towards a luxury car, holiday or gambling. Your mortgage loan will increase to $350,000.
Some mortgage loans have offset accounts where the parties usually place all surplus funds into. The offset accounts are usually in joint names, so your ex-partner is likely to have access (whether electronic or card access) to the account. For all offset accounts, you need to think about the same things as mentioned above for bank accounts.
Property disposed of without consent
If you or your ex-partner dispose of matrimonial or relationship assets without the other person’s consent, it is usual to know that this will be taken into consideration by the Court when deciding a property settlement.
If your ex-partner sold an asset that was purchased during the relationship or using joint funds, you can seek for the value of the boat to be notionally put back to the asset pool at the time of deciding property settlement. For example, if your ex- partner sold a for $50,000, and your ex-partner spent those funds, you can seek for $50,000 be counted in the asset pool and be attributed towards your ex-partner even if that money no longer exists. Another example is if one party wastes funds with intention of decreasing the asset pool, then those funds may be included in the asset pool by way of an add- back. This concept is known as “add back” or “notional property”.
The advantage of add-back is that the value of the asset that was disposed of will be in the asset pool, dollar for dollar. So even though the asset doesn’t exist and in most cases the funds received from those assets are spent, it is deemed to exist for the purpose of property settlement so that the injured party (being the party that did not receive the benefit of the funds/asset) can obtain a higher portion of the existing property.
In practice, add backs are not common in family law matters as the Court usually likes to deal with the property that exist and that can be subject to division at the time of settlement. Add-backs are considered as an expectation to the rule, so you should consider alternative avenues available to you in preserving the asset pool. For example, it may be better to do one of the following when there is a risk of an asset being sold without your consent:
- Commence proceedings with the family court seeking urgent hearing for injunction to prevent the sale;
- Agree with the other party, in writing, that the proceeds of sale will be counted as partial settlement;
- Obtain a freezing order form the court.
Legal advice
This article as touched on a lot of different kinds of assets and liabilities that you and your ex-partner may have. As you can see, there’s a lot to think about, so we recommend that it’s always best to seek expert legal advice as soon as you can after a separation. We understand that this time in anyone’s life can be stressful and confusing, so at Lynn & Brown we aim to provide assistance in reaching financial settlement efficiently and on a fixed price basis.
About the authors:
Christina Ati was admitted in the Supreme Court of WA on 1 August 2014 and has developed and refined her skills as a Family Lawyer. Christina has experience in both children and parenting matters and matrimonial/de facto property settlement matters. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
Enjoyed this article? Read more family law posts in our blog, and check out our fact sheets on family law.
