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Whether you are already separated, or you are considering separation and divorce, it is important to be able to get some clarity about what can happen financially. This triggers a query we hear often: “What is my wife entitled to in a divorce in Australia?” While this article has been written asking about what a ‘wife’ would be entitled to in a separation, it applies to both marriages and de facto relationships coming to an end.
It is natural to be concerned about how your finances will be impacted. Your house, money, any other assets and debts are taken into account as part of the separation process. In Family Law, this process is known as a property settlement, it is a term you will hear often.
We will explain what happens here in Australia when it comes to the processes in separation and divorce including:
- What a property settlement involves
- Whether your ex wife can claim money after the divorce
- Whether your ex wife can claim money from a new partner or future partner; as well as
- What can be done to protect your assets now.
What is Involved in a Divorce Settlement in Australia?
You may be the primary breadwinner in your relationship or perhaps you came into the relationship with more assets than your wife. There should be no expectation that there will be a 50/50 split. Neither is it the case that the person who has contributed more financially to a marriage will walk away with more of the final asset pool.
In Australia, all contributions to the marriage, financial and non-financial are factored into how the asset pool should be divided.
Non-financial contributions can include caring for and raising children as well as housekeeping or renovations, for example.
In Australia, the Family Law Act requires other factors to also be taken into account when determining how your combined asset pool is to be shared. Some of these factors include:
- Whether assets were owned before the marriage (though the importance of this decreases with the length of time the marriage has existed);
- The future potential earning capacity of you and your wife; and
- How any financial split will impact any children involved.
While the above is not an exhaustive list of what is to be taken into account, this illustrates why people must engage a family lawyer early on to seek advice about any potential decisions you may be considering.
Do I Have To Wait 12 Months To Split Our Finances & Assets?
It is a common misconception that a divorce includes the financial separation and the division of assets and your parenting arrangements. This is not the case. You do not have to wait until you are divorced to begin the property settlement process and how you will share the care of any dependent children you have. You can begin making plans for this anytime from the date of separation.
A divorce however, cannot be applied for until a minimum of 12 months and 1 day has passed from the date of separation. Given the specificity of the timeline, knowing the date you separate is important to be clear about. You want to avoid any confusion or disagreement about the date of your separation as it not only affects eligibility to apply for a divorce but it can also impact on some important time limitations that are set by the legislation.
Once the divorce is official, that is, the Court has made Court Orders, if you have not finalised your property settlement, then you have 12 months from the date of the Divorce Order coming into effect.
After Divorce Can My Ex Wife Claim Money?
Remembering that a divorce is the legal term for the termination of a marriage and nothing more, then yes your ex wife can claim money after the divorce. Generally Courts will allow up to 12 months after a divorce for a property settlement claim.
Even if you have made a formal and legal settlement claim, there are situations where your ex may make a claim for money later down the line, even after the usual 12 month timeline has passed. Again, seeking legal advice early to ensure you take steps to reduce the risk of this occurring is recommended.
Other ways in which your ex wife could claim post-divorce, is if an existing property settlement was overturned by the Court. This is possible if it is found that you did not enter into the process honestly. The sorts of actions that could result in a property settlement being overturned include:
- If your assets that were not disclosed or were intentionally hidden;
- If it is found that you placed undue pressure on your ex wife to agree to the settlement conditions;
- If you were threatening or used intimidation throughout the settlement process; or
- If you have lied about any of the information you share.
If you hide any assets, or spend money or dispose of assets, then that can come back to bite you later down the road. These are known as ‘adjustments’ and you will very likely pay for this, and potentially more, later on. It is not uncommon for a Court to order someone to pay their ex’s legal fees as a consequence of these actions.
Another trigger for someone wanting to make a property settlement claim after divorce is if one party to the divorce has been a recipient of an unexpected and significant amount of money and there was no finalised property settlement. The legal term for an unexpected increase in assets or income due to external circumstances is a Windfall. Some examples of a windfall where your ex could make a claim to money include:
- A lottery win
- A significant inheritance; or
- Workers compensation payout
While there is no one answer to whether or not your ex wife could make a claim to any of the above, there are some guidelines that may apply to the decision. These include:
- How long after separation you received the money;
- Whether your ex made any contributions to the windfall;
- Whether finances were joint or separate;
- Any difference in earning capacity, age etc.
- If your ex wife would suffer hardship by not receiving a share of the money; or
- If there is currently a greater financial need of your ex wife, particularly in regard to the care of any children from the marriage.
The Court may treat the money as an asset, financial resource (income), or they may exclude it from the asset pool.
Even if it is taken into account and included in the asset pool, if the windfall was received after separation, the Court may not consider it as an equal contribution.
It is therefore crucial that you obtain legal advice about whether you should formalise your property settlement. It is much harder to overturn Consent Orders once they have been made by the Court.
Can My Ex Claim Money From My New Partner?
The most common reason that your ex may be able to claim money or assets from your new partner is if you and your new partner are living together at the time of a settlement dispute. This is because this situation often involves the intermingling of assets. Once this happens, it can be difficult to separate out what is yours and what is your new partner’s (for the purposes of defining the asset pool). You should particularly be aware of making large purchases in combined names or creating shared accounts with your new partner.
As detailed above, any deceitful action taken, whether intentional or not will be held against you when it comes to a property settlement. Some actions that may be viewed as an attempt to hide assets and therefore be deceitful include:
- Transferring property into a new partner’s name;
- Moving money into an account under the name of your new partner; or
- Selling assets immediately before or during the settlement process.
If you are planning to make significant changes to your property or assets during a separation, seeking advice from a family lawyer first is essential. You could potentially save yourself a great deal of damage that can be caused by selling or purchasing assets, transferring assets or intermingling finances with a new partner.
Know Where You Stand Financially
Now that we have answered the question “What is my wife entitled to in a divorce?” with some broad contexts, the next step is for you to seek legal advice about your specific circumstances. Clarity about what to expect from any property settlement is only possible if you seek professional advice and get informed before entering into any negotiations or informal agreements with your ex.
Have you recently separated or are you considering separation?
Do you have concerns or questions that relate to how to get a divorce in Australia?
We can help you wherever you are based in Sydney. We have three office locations – Penrith, Norwest & Sydney CBD – as well as phone and online consultations if preferred. Reach out to our team on 02 47 222 050.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.