The property pool is determined as at the date of the property settlement (whether property settlement arises by agreement between the parties or by a final order of the court).
If you are unable to come to an agreement, and the matter requires a final hearing, it can take up to two (2) years for a trial date. This means that all dealings that occur in the post-separation period (i.e. the period from separation to the date of the final hearing) will be relevant.
For your benefit, you should consider how you can preserve the property pool and protect your entitlement to the property pool.
Protect your entitlement
We recommend considering the following to protect your entitlement:
- Contact your bank and ensure that any joint bank accounts require ‘joint to sign’ or are frozen until further agreement so that your former partner cannot withdraw lump sums from the accounts without consulting you first;
- Speak to your employer and ensure that your income is not being paid into joint accounts (unless those accounts are required to continue to service joint expenses);
- Protect your rights in real property, by:
- Ensuring that the joint tenancy is severed, and real property is held as tenants in common;
- Possibly registering a caveat over the property;
- Contacting your lender, bank or financial institution and ensuring that your former spouse cannot redraw on the mortgage facility held over the property thereby decreasing the equity in the property;
- Review your estate planning;
Protect your entitlement
- If you have a credit card facility which your former partner previously accessed with a subsidiary card, ensure that the credit card is either returned or cancelled, or that the credit limit is reduced. You should advise your former partner if you have made any of these changes;
- Do a ‘personal audit’ to ascertain if you have given any personal guarantees on behalf of former partner;
- Consider if it is appropriate to establish a child maintenance trust on behalf of your child or children (to effectively quarantine capital and pay child support obligations with pre-tax income, with the payments to be taxed as ‘expected trust income’ for each minor child);
- Ensure all important documents (i.e. passports, marriage certificate, birth certificate, company registers, etc.) are safe; and
- Arrange an appointment with your accountant and/or financial adviser to educate yourself on the potential repercussions of dealing with your assets moving forward.
Protect your assets
In more extreme situations, Ramsden Lawyers can assist you to protect your assets in the following way:
- Put the other party on notice that you do not consent to them adversely dealing with your property;
- Apply for an injunction restraining your former partner from removing property from Australia, or from otherwise dealing with property in or outside Australia (this only occurs in extreme situations where there is a real risk you will suffer damage if the injunction is not made);
- Make an application to have a bank account frozen; and
- Make an application for an Anton Piller order (to seize documents or other property), only where there is a real risk that the documents or property will otherwise be destroyed or hidden.
Protect your assets
In particular circumstances, it might not be necessary to protect assets. For example, where there are sufficient available funds, such that your ultimate entitlement will not be jeopardised.
Protecting your rights in real property
Until your family law matters are finalised, it is important to protect and preserve your interest in real property; particularly if you predict that the matter will not be resolved quickly.
If you own real property with your former partner and you are both on title, the real property can be held as ‘joint tenants’ or ‘tenants in common’.
Joint tenants share equally in the entire ownership of the property, and each party has equal, undivided rights to keep or dispose of the property. Joint tenancy creates, what is known as, the right of survivorship. Effectively, in the event of your death, your entitlement will automatically pass to your former partner (despite what your current will might say). Similarly, should your former partner predecease you, his/her share will automatically pass to you. Either party has the capacity, at any time, to sever the joint tenancy that exists. Severance of a joint tenancy can be done unilaterally without your former partner’s consent. Once severed, the property will be held as tenants in common.
Tenants in Common
Tenants in common beneficially own the property, and any income derived from that property is distributed in the same proportion as the legal title held. In those circumstances, if either party passes away, the proportion of that party’s rights in the matrimonial home (whatever that may be), will be passed to the beneficiaries named in their will.
If you require further advice regarding joint tenancy or you are uncertain about whether you hold your property as joint tenants, please let us know and we will refer you to a member of the Ramsden Lawyers’ property team.
Even if you are not on title of the property, you might still have an interest in the property pursuant to family law. That interest will need to be preserved throughout the family law negotiations and/or proceedings.
If you are not on title of any real property and your former partner is the sole titleholder, you might consider lodging a caveat over your legal or equitable interest in the property. The intention being that the caveat will operate to preserve the property pool until the court has made a determination as to your rights in the property.
So what is a caveat?
A caveat is a formal document which is lodged at the Titles Office that puts the Registrar on notice to prohibit the registration of any instrument (for example, a form which transfers the property, or processes a mortgage over the property) until the caveat is withdrawn, removed, lapsed or cancelled.
Once a caveat is lodged, your former partner cannot adversely deal with the property. For example:
- He/she cannot sell the property at a nominal value to a close family member or friend to buy back after the proceedings have been finalised;
- He/she cannot sell the property to a third party to attempt to defeat your claim; and
- He/she cannot place a further encumbrance over the property to reduce its equity (and the property pool as a whole).
Once you have lodged a caveat, you must be prepared to commence court proceedings. The registered owner of the property will be given notice that the caveat exists, and you might be asked to commence court proceedings within fourteen (14) days to establish that you have an interest in the property. If you do not, the caveat will automatically lapse and you will not be able to lodge another caveat under the same grounds. Importantly, if you lodge a caveat without reasonable cause, and your former partner suffers a loss because of that, you will be required to compensate them and anyone else who suffers loss or damage as a result.
We recommend seeking legal advice prior to lodging a caveat. If you require further information, please let us know and we will refer you to a member of the Ramsden Lawyers’ property team.
Upon separation, we recommend that you review your estate plan, so that your former partner does not benefit (against your wishes) from your estate if you suddenly pass away.
To that end, we recommend attending to the following:
(a) Review your will to ensure that your former partner does not benefit from your estate if you no longer intend for that to be the case. If you do not have a will, we strongly recommend that you get a will drafted;
(b) Review your power of attorney (‘POA’) to ensure your former partner does not have the authority to make legally binding decisions to manage your assets and financial affairs on your behalf if you are unable to do so. If you do not have a POA, we strongly recommend that you get a POA drafted;
(c) Review your superannuation fund details, beneficiaries and balances, and remove any authority for your former partner to act and/or transact if necessary;
(d) Review your life insurance policy details and beneficiaries, and remove any authority for your former partner to act and/or transact if necessary;
(e) Revise your Medicare and health insurance policies, particularly if children are involved. If necessary, seek independent specialist financial advice about any implications of changing health insurance policies.
If you require assistance with any of the above tasks, please contact Ramsden Lawyers and we can make a referral to the relevant department to assist.
Effect of death on property proceedings
Provided that proceedings have already been commenced, property settlement proceedings (not inclusive of spousal maintenance issues) can be continued by or against the executor of a deceased party. In those circumstances, the court can continue to make a final property order as if the deceased party had not passed away. Any order will then be enforceable by or against the deceased party’s estate.
Property proceedings cannot be instituted after one party passes away. If either you or your former partner is considerably ill, we strongly recommend that proceedings be commenced at the earliest opportunity to preserve any claim. If you have not filed an application to commence proceedings and you suddenly pass away, your predecessors will be unable to commence proceedings on your behalf. If both parties to the proceedings pass away, the proceedings will be vacated.
For any additional information about the effect of death on property proceedings, please contact our family law department.