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Recently I have had several matters where parties who separated years ago have now reached agreement as to division of their assets. The issue has then become having to disclose their current financial positions.
Many people feel aggrieved that the person they were partnered with years ago, should be able to find out about their current finances. There is a concern that their former partner will discover that they have moved on and become successful and acquired more assets – that their former partner may now want a piece of.
Under the Family Law Act 1975, people can seek an adjustment of property from their spouse years after they have separated, provided that there have been no final court Orders made and they are still married. De facto parties have two years after separation to seek a property adjustment.
The cost of applying for a divorce sometimes discourages people from formally divorcing and they remain married despite having been separated for several years. The risk that this exposes people to is that their spouse may still seek an adjustment of property. Some married couples may have informally divided their assets at separation but until there is a court Order regarding division of their assets, or they have been divorced for more than 12 months, the gate is still open for their spouse to make a claim.
When applying to Court, either by consent or seeking a Court to make a determination, each party is to disclose to eachother and to the Court, information about their current financial situation and the division of their assets is based on their current pool of assets, liabilities and superannuation, not the pool that existed at separation.
This means that if you have gone on to save more money in the bank, purchase more assets including cars and property, acquired more superannuation – all of that information will need to be disclosed and will impact on the calculation of the division of your property.
The sooner you formalise your agreement in the form of Court Orders the better. That way you draw the line in the sand, divide your property that exists at that time and can then move on and acquire more assets, without fear that your former spouse may make further claims.
If it has been some time since you have separated and you never formalised your division of assets, we suggest you obtain legal advice from us. We have assisted parties to reach agreement as to division of their assets years after they have separated, by having regard to informal division that took place at the time of separation and the assets that existed at that time. You will still need to disclose your current position but with our expert guidance, we can assist you to obtain Orders that have minimal impact on the assets you acquired post separation. Please contact our office if you have any questions or would like to discuss.
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