A Practical Check List For Separation
Are you thinking about separating or divorcing? This is a hard time for anyone to go through, so we have collated a practical list of things you may need to consider with regards to your property/assets:
Monies in joint accounts can be accessed by either account holder without the consent of the other. This often causes issue in family law matters, with one spouse clearing the account/s just before or at the time of separation.
Some people whom are worried about this situation can attend the bank and seek that both parties need to sign in the event that a party seeks to withdraw money over a certain amount. For example any withdrawal or transaction over $5,000 needs to be authorised by both account holders. Ensure that all requests to the financial institute are in writing so that this can be relied upon in the event that the request has not been processed fast enough. This also applies to your mortgage – contact the bank in writing to ensure that the mortgage cannot be increased or drawn down on without both parties written consent.
Again the above applies. Beware of your spouse increasing the credit card limit or maxing it out. Contact the relevant financial institute and notify them of your impending separation and seek advice as to their policies about cancelling the card or restricting it. Each financial institute is different – so different polices will apply.
When a spouse leaves the property they often do not have the opportunity to take their personal belongings such as birth certificate, marriage certificates and financial documentation. This can be a huge issue later down the path, especially when you are required to make financial disclosure and are unable to as your documents are in the possession of your spouse.
A good idea is to take copies of your personal documentation whether it be on the cloud or stored with your lawyer. If possible, also obtain a copy of your spouse’s documentation so that the financial disclosure process can be expedited.
As the parties superannuation entitlements are usually equalised (added up and divided equally between both parties) additional contributions to your superfund post settlement means that your balance will continue to increase and will be subject to any super split. If you are making additional contributions to your superannuation, you may wish to review this.
It is also important to change your binding death nomination – if you had your spouse nominated as the recipient of your superannuation upon your death, it is important to change this immediately. You may consider nominating your children, your siblings or your parents. It is best to seek financial advice from your accountant or financial planner in regards to your superannuation.
Text messages and Emails
In the world of technology many people communicate via written forms – text, email, messenger etc. The content in the written communication between you and your spouse may be important and thus it is recommended that you back up your data. The written correspondence between you and your spouse may also be useful to refute any allegations that are made about you that are untrue and can be disproved by written communication.
Value of Assets
It is a misconception that the property pool (assets and liabilities of the parties) that will be split has the value attributed at the day of separation. That is completely untrue. The assets that form part of the asset pool – superannuation, houses, shares etc. are valued as of the time of the actual agreement or at the time a Court Order is made. Therefore, if you separate and do not finalise your property matters for 2 years – it is the value of your assets at the time of the finalising of your matters that is applicable. If your Superannuation has increased, which is normal – it is that value, not that of the day of separation. If for example the property value at the time of separation was $800,000 and two years later at the time the financial matters are finalised the property is worth $1,000,000 – it is the latter value that applies. Obviously the same applies in the event of a decrease.
Will and Power of Attorney
Most people have their spouse included in their Will, generally as both the Executor and the primary beneficiary. Therefore, upon separation is it vital that your Will is updated so that your ex-spouse is not named within your Will. The same applies to Power of Attorneys, if you have appointed your spouse as your attorney you must immediately alter the appointment.
Does your spouse have property in their name only?
Do you and your spouse own any properties as tenants in common?
Does your spouse own property via a trust or a company?
Is your spouse a beneficiary of a trust that owns property?
If any of the above apply, it may be prudent to have your lawyer lodge a caveat on the property/properties or at a minimum place a title alert on the property/properties to ensure that there are no improper dealings such as a sale, a further mortgage or a caveat from another party.
A married couple cannot seek a divorce decree until they have been separated for more than 12 months. A divorce decree can be sought if you have been separated, however have resided under the one roof – however it is best that you seek legal advice to assist with this part of the divorce application. Just because you need to be separated for a minimum of 12 months before you obtain a divorce, this does not preclude married couples from finalising their financial affairs prior to the divorce.
If you are in the process of separating, contacting a lawyer and having a preliminary meeting may be a very wise investment that could mean the efficient finalisation of your property matters.