Divorce – other things to consider

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January 31, 2013 by Todd

Aside from ending your marriage to your spouse and permitting you to lawfully remarry someone else, divorce has other consequences which are not always well understood.  Those consequences relate to property settlement, spousal maintenance and your Will.

Property settlement and spousal maintenance

You can generally only go to Court about property settlement or spousal maintenance within 12 months of your divorce.

However, it is possible to commence proceedings after the 12 month period has ended with the court’s permission.  But you should never assume that permission will be given.

In a property matter, the Court considers whether you would suffer hardship if permission were not given.  For example, where you and your former spouse still jointly own property (such as a house).  In that case, it is possible to go to the Supreme Court, but that may be more expensive and cause hardship.

In a spousal maintenance matter, the Court needs to decide whether you were able to property support yourself or not without the assistance of an income tested pension, allowance or benefit at the end of the 12 month period after divorce.

That said, there is a recent decision of the Court which says that if your spouse makes any family law application to the Court outside the 12 month period (for example, in relation to your children), you can then ask the Court to make property or spousal maintenance orders in response.

Your Will

When your divorce is finalised, it is important to look at your Will.

If you make a Will when married and then you divorce your spouse, the following parts of that Will will no longer have legal effect unless your Will says otherwise:

1. Any gift to your former spouse;

2. The appointment of your former spouse as executor, trustee or guardian;

3. The grant to your former spouse of a ‘power of appointment’.

A divorce does not cancel the following parts of your Will:

1. An appointment of your former spouse as trustee of property left on trust for beneficiaries including their children;

2. A grant of appointment to your former spouse only in favour of their children with you.

Your former spouse is not prevented by your divorce from making a claim against your estate when you die.  You should ensure that there is a clause which protects your estate from such a claim in your family law property settlement.

It is therefore very important that you get good legal advice about the consequences of divorce in your particular circumstances.  Let our knowledge be your edge.  Contact us now.


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