Why do you need to get advice about your property settlement quickly after separation?


September 9, 2013 by Todd

When you separate from your partner or spouse, you have a lot to deal with.  The practical stuff like finding a new place to live and getting your life back in order.  The emotional stuff – dealing with the feelings which come from a separation.  You’ve got enough to deal with, so why add something extra to your plate by talking to a lawyer about a property settlement?

There are a few reasons for this:

1. You can never really have peace of mind about your future until you tie up the loose ends from your past.  In property matters, the only way you can do that is by entering into consent orders or a financial agreement, or as a worst case by going to Court and asking the Court to make orders.  If you don’t, it is possible for your former partner or spouse to come back later and seek a property settlement in relation to property which you buy or get after separation.

2. There is a risk that you may say and do things which can affect the property settlement you ultimately receive if you don’t get good legal advice about your circumstances.

A recent decision of the Full Court of the Family Court deals with both issues, and particularly the second one.

Bevan & Bevan [2013] FamCAFC 116

In this case, the husband and wife effectively separated in 1994.  The husband told the wife that she could keep the assets which they had shared.  He resettled in England.  The wife then did certain things on the basis of what the husband had said, including buying a new house.  However, the husband and the wife were not divorced until July 2010.  Just prior to the expiry of the limitation period of one year after the date of the divorce, the husband filed an application for property settlement.

The trial judge decided that the husband should not be kept to what he had told the wife in 1994.  The trial judge ordered that the wife pay the husband a sum of money or, if she could not pay that money, that the house she had bought after 1994 be sold with the husband to be paid out of the proceeds of sale.  The wife appealed.

The Full Court agreed with the wife.  It said a number of things, the most important of which for the purpose of this article are:

1. What the husband had told the wife in 1994 was relevant to the question of whether the orders which the Court was thinking about making were “just and equitable”.

2. A long delay in bringing property settlement proceedings may be relevant to whether any property settlement orders should be made at all.

3. The ‘contributions’ which the husband had made to the joint pool of assets up to 1994 was also relevant.

How does this affect you?

This case is important in a number of respects:

1. Do not make any promises to your former partner or spouse that they can keep all or any part of your property until you get legal advice.

2. If you wish to make a claim for property settlement, you should not delay for too long.

3. If you are the partner or spouse who has been promised part or all of the property, have that agreement turned into a financial agreement or consent orders.  While this case shows that delay and informal agreements may be relevant to what orders the Court decides to make, those are not the only matters which the Court will take into account.  The relative security of consent orders or a financial agreement is much better than the risk of a court case later on which will end up costing you much more.

Get advice from someone who has strong knowledge and experience in family law.  Let our knowledge be your edge.  Contact us now.


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