Author: Allyson Gagliardi

If you’ve received an inheritance and have worked hard to invest it wisely, a key concern will be whether it can be divided during divorce proceedings. 

It is possible that any inheritance you’ve received may be included in the property asset pool if you’re separated and have not yet finalised your property settlement. The Family Court has a wide discretion in this area, so here’s a general guide to help navigate such a complex issue.

What is an inheritance?

In legal terms, an inheritance refers to the assets, property, or money that a person receives from the estate of a deceased individual through a will, in accordance with the benefactor’s (or testator’s) wishes.

Can my de facto partner claim my inheritance?

In Australia, the laws regarding the division of property in the event of a relationship breakdown, including de facto relationships, are primarily governed by the Family Law Act 1975. De facto couples who have been living together for two years or more, including both opposite-sex and same-sex relationships, are subject to similar legal principles as married couples when it comes to property settlement.

Factors considered by the Family Court

When it comes to resolving the division of assets during divorce proceedings, taking it to court can sometimes be necessary. Inheritance entitlements in Australian family law is guided by the principles of the Family Law Act 1975 where the court will assess the financial circumstances of both parties and consider various factors to determine a fair and equitable distribution of assets. 

In divorce proceedings, an inheritance is typically treated as your financial contribution, which may be taken into account when determining a fair division of property. However various factors come into play, including:

1. The amount of the inheritance and how it was used

The court may consider the size of the inheritance compared to the value of the joint asset pool and may include it to make sure there is an equitable property settlement for both parties. The way the inheritance was used can also impact its treatment. For example, if the inheritance was used for the benefit of the family, such as a new car or home improvements, it would be considered a marital asset.

2. When the inheritance was received

• Before the relationship: likely to be considered an initial contribution to the marriage;

• During the relationship: also usually considered a contribution to marital assets, if spent on family expenses;
• After separation: the only time you may be spared from including the inheritance in the division of the total asset pool. 

3. The contributions and financial circumstances of each party

The overall contributions of each spouse to the marriage, both financial and non-financial, will be assessed. This includes homemaking, parenting, and financial contributions. The court considers the overall contributions when determining a fair settlement, as well as factors like age, health, earning capacity and care responsibilities.

4. The wishes and intentions of the Benefactor or Testator 

This is relevant and the relationship between your ex and the benefactor will be considered, as will their intentions for the inheritance to be used by the whole family.

When your spouse or partner has contributed

If the inheritance was a beach house for example, and your ex paid for half of its renovation, then they have contributed to the value of the asset. The court will assess both financial and non-financial contributions, including homemaking and parenting.

A word on future inheritance in divorce settlements

Any expected inheritances in the future, generally will not form part of the asset pool in a divorce, which could be a relief to know. This is because wills can change at any time while the benefactor is still alive. 

How to better safeguard your inheritance

Wondering how to keep inheritance separate from your spouse? Think again because generally, inheritance isn’t automatically considered a protected asset in family law matters unless it’s been entirely preserved, such as being kept in a separate term deposit account since receiving it. Even in that case it could easily form part of the property pool for adjustment between a couple. 

If it’s substantial, the best safeguard for either married or de facto couples is a binding financial agreement, or “pre-nup”. 

A Binding Financial Agreement 

One effective strategy is to enter into a Binding Financial Agreement (or a “pre-nup” – regardless of whether or not you are a de facto or married spouse), that clearly outlines the division of property, including the status of your inheritance. These agreements provide a legal framework for protecting your assets in the event of a separation. 

You can enter into a Binding Financial Agreement at any time before and during the relationship that designates your inheritance as separate property. This can protect your inheritance.

What if we can’t agree?

If agreement just can’t be reached, a consent order can be lodged with the court, after negotiation and agreement with your ex. This is a legally-binding document outlining the property settlement terms. Remember that the court decides though, so it may or may not be in your favour.  

When it comes to resolving the division of assets involving an inheritance during a separation, it’s beneficial to try and reach an agreement with your partner, but taking it to court can sometimes be necessary.

Each case is unique, so for expert legal advice to understand how these factors apply to your circumstances, speak with the team at Rockwell Family Lawyers. Book a consultation with our experts today.

Financial Separation refers to the process of dividing and ending the financial ties between you and your ex-partner following the breakdown of a relationship. 

“Property settlement” on the other hand, is a specific part of the financial separation process. It is during the property settlement stage and where one party ought be paying maintenance to another, that our lawyers can help.

Our aim at Rockwell Family Law is to guide you smoothly through the process of a financial separation; establish a firm foundation for your future; assist you to gain your financial independence, and most importantly of all – to set you up for your best future, emotionally and financially.

What is financial separation?

Financial Separation refers to the process of dividing and ending the financial ties between you and your ex-partner following the breakdown of a relationship. This process is guided by the ‘clean break principle’, which is the court’s duty to end financial relations between the parties. The aim of financial separation is to ensure that each party can move forward independently without ongoing financial obligations to each other. However, it’s important to note that this principle does not apply to spousal maintenance payable by one person to another.

Property Settlement, on the other hand, is a specific part of the financial separation process. It involves the division of the parties’ property, assets, and liabilities. This process is governed by section 79 of the Family Law Act. The court considers various factors, such as the financial and non-financial contributions of each party, their future needs, and the need to ensure that the settlement is just and equitable.

In reality, a property settlement agreement is one of the ways to achieve financial separation. However, financial separation also includes other aspects such as spousal maintenance and child support.

The Australian Family Law Act of 1975 and Child Support (Assessment) Act 1989 provides the framework for how a financial separation can be achieved and includes these kep legal concepts or outcomes.:

“Property settlement” which can be achieved informally or formally by way of Consent Orders, a Binding Financial Agreement or if agreement can’t be reached, by the Court making Orders after a hearing.  A phrase you will often hear during a property settlement is “the property pool”.  

“Property Pool” This refers to the total combined assets,liabilities and superannuation of both parties in a relationship as at today. This includes all property, financial resources, and debts that either or both parties have an interest in, regardless of whose name the assets or liabilities are in and most often includes real estate ,vehicles, bank accounts, mortgages, credit cards, shares, investments, superannuation and any business.

“Spousal Maintenance” which is financial support paid by one person to their former spouse or de facto partner after separation or divorce. This is not automatic and is based on the needs of the person seeking support and the other person’s ability to pay.  It is not automatic and paid when one partner can’t meet their reasonable expenses or is unable to support themselves adequately. 

“Child Support” is the financial assistance paid by one parent to the other for the upbringing of children.  The amount of child support is generally determined by the Child Support Agency based on factors such as the income of both parents, the number of children, and the time each parent spends with the children. The obligation to pay child support continues until the child turns 18.

A successful financial separation considers all of these factors, with both parties hopefully coming to agreement. 

Once an agreement is reached, it can be formalised in documents known as Consent Orders, or Binding Financial Agreements (BFA) – both of which can include spousal maintenance – and Child Support Agreements. Only Consent Orders need to be approved by the court (no-one appears in court).

Our aim is to have these negotiations run smoothly in an informative manner, and to avoid the destructive and expensive process of going to court to obtain a court-ordered Financial Order.  

Get advice early in the process: Seeking guidance from a family law expert is a crucial initial step

Your ability to talk openly and honestly with your former partner will greatly help with informed, smooth negotiations towards an amicable agreement.

Having a legal advisor act as your “shield” and negotiator is aimed at helping reduce any escalation of conflict with your former partner, as any points of disagreement can be quickly addressed in an unemotional manner, factual issues resolved, and the process end with a negotiated outcome. This is especially important where there is a power imbalance between you and your ex.

Even if both  parties can negotiate well themselves, an experienced family lawyer will sort out issues they might not have been aware existed, ensuring a fair and equitable division of the assets to you and avoiding future problems.

Understanding the process used to establish property settlement entitlements

The court uses a four-step process in order to assess a person’s property settlement entitlements. This is same process family lawyers use advising you and are adopted in negotiations and mediation. Our aim is to ensure you will receive an outcome within the range the Court would order if it were to resolve any dispute.  

1. Ascertain the property pool

A lawyer assists a client in ascertaining the property pool by identifying and valuing all assets, liabilities, and superannuation interests of both parties involved in the property settlement. This often includes obtaining formal valuations of significant assets such as real estate and businesses, ensuring full and frank disclosure of all financial circumstances and property by each person, and considering any changes in asset values from the date of separation to the date of settlement. The lawyer’s role is crucial in ensuring an accurate representation of the property pool, which forms the basis for a ‘just and equitable’ property settlement.  Your lawyer can assist you at this step even if you prefer to personally negotiate with the other person.

2. Assess Contributions

In most relationships, each person usually makes significant contributions to the property, liabilities and superannuation each has accumulated during the relationship.  Contributions can be financial, non-financial (towards property, liabilities and superannuation).  Other contributions assessed are homemaking and parenting contributions, contributions towards the welfare of the family. Your lawyer will be able to guide you through how each contribution may adjust your overall entitlements at property settlement.

Financial contributions can include:

• any property, liabilities, superannuation a person had when you first started  living together relationship
• how each person applied their property and income towards acquiring, conserving and maintaining assets during the relationship and after the relationship
• Finances each person applied towards the benefit of the family

Non-financial contributions can include:

• Unpaid work towards acquiring, conserving and maintaining property including unpaid maintenance or improvements.  eg. renovations, repainting or landscaping
• Homemaker contributions which can include “domestic” duties, cleaning, mowing the lawn, cooking etc
• Parenting contributions – the time and sacrifices made by a person who might stay home to raise the children, foregoing part or more of their career – these contributions are given equal weight to the other person’s contribution in being the “breadwinner” by going out to work and support the family financially

3. Assess Future needs

At this third step, there is an assessment as to the future needs of each person.  Future needs take into account a variety of factors including each person’s age, health, their income, property, and financial resources and whether one will have primary care of children. Other factors include a personal’s necessary financial commitments,  their physical and mental capacity for appropriate gainful employment. Often it is important to ass each person’s ability to regenerate capital/income in the future. This may adjust the property settlement in favour of a party who has a significantly smaller future ability to regenerate capital, considering this party may be at a financial disadvantage and may need a larger share of the property pool to meet their future needs.  Just as a person who will have the primary care of children will incur the greater financial cost of doing so. 

Your lawyer will help you identify at this step factors that may result in an adjust needing to be made to take into consideration these factors. 

4. Assess whether the proposed outcome is “just and equitable”

Your lawyer will consider a proposed outcome.  They will step back and take an objective view of it and assess whether it is a “just and equitable” division of property and superannuation. 

If you and your ex have already come with proposed Consent Orders or a Binding Financial Agreement, our lawyers can give you independent legal advice as to the advantages and disadvantages to you of entering into the proposed division and whether or not the Court when considering Consent Orders, will likely make the Orders sought. 

When a person can’t financially maintain themselves

If a person can’t adequately maintain themselves or meet their necessary day-to-day living costs, they may be entitled to receive spousal maintenance if the other person has the capacity to pay it. 

Understanding Spousal Maintenance Under Australian Law

After a couple ends their relationship, the court might set up financial support for a period of time for one person which is called spousal maintenance. The court takes into consideration what each party requires for the future, what they can afford, their age, health, and how much they earn.

It’s not just about what one party needs; it’s also about what the other can afford. This can be negotiated before considering going to Court including at mediation.  If you end up in Court, and the need and capacity to pay are assessed such that spousal maintenance is payable, the Court will make an Order – this might be or a specific amount of time, a lump sum payment or that maintenance ends upon cohabitation with a new partner. 

Amicable Separation: Consent Orders and Agreements

In amicable separations, where parties agree on a division of the property pool, Consent Orders and Binding Financial Agreements are the only way to ensure a division is enforceable at law.  They are also the only means of avoiding stamp duty in the instance one person retains the family home and has to refinance the mortgage..

Binding Financial Agreement in particular are versatile, fitting different stages of a relationship and can be entered into before, during or after a relationship.  They allow you to decide at any point before or during your relationship how people can choose to effect a future property settlement and spousal maintenance if the relationship breaks down.   

Consult with legal professionals when setting up these agreements to guarantee that they are clear, comprehensive, and in line with legal requirements so that if needed, they are enforceable.  It is important that any agreement reached between the parties is legal binding so neither party has recourse to re-open the outcome at a later date.

Handling Disagreements in Separation

Several approaches are available when an amicable separation isn’t possible.. 

Negotiation, mediation and arbitration are all ways of staying out of Court yet ensuring any agreement reached can be documented in a way that is legally binding and enforceable.  If you arbitrate, your “award” will be made by the Court as if the court heard the matter.  Where negotiation and mediation fail,  applying to the Court is the last option available. Each of these processes when handled by experienced family lawyers is grounded in principles of fairness f for both parties.

Key Do’s and Don’ts for financial separation

• Do:
  • Be honest about finances for a fair division.
  • Keep track of asset values and status changes.
  • Seek professional guidance for complex issues.
  • Document all transactions and agreements.
• Don’t:
  • Delay the settlement process.
  • Secretly hide or move assets.
  • Make informal agreements without legal advice.
  • Ignore the tax and stamp duty implications of asset division.

Common Questions asked during a financial separation process:

What is my partner entitled to in a separation in Australia?

Financial, non-financial, parenting and home-making contributions are assessed, along with the future needs of each person, to decide on an fair division of the property pool. Relevant matters include work in the house and in raising children, as well as work to improve any property. Present your account of contributions and your future needs your lawyer, and they will advise you on what they think is your range of entitlements following the four-step process.

Who pays the mortgage after separation?

You and your former partner may decide which one or that both of you should continue to contribute to the mortgage until property settlement is reached. Your lawyer will provide you with advice on what is fair, considering who contributed more to the property pool, how much is left on the mortgage, whether you remain living there or not, whom wishes to retain the property or whether it is intended to be sold. 

What is a typical percentage division of property in Australia?

The percentage division of property between former partners is not set in stone; it all depends on the many factors outlined above.  Every case is unique and there is no hard and fast rule.  It is likely that if your friend received 40% you will receive something different because you may have different circumstances overall. 

Is my girlfriend entitled to half of my house in Australia?

Not automatically, no.  The whole property pool needs to be considered as do all factors mentioned above before determining any percentage.  That percentage is applied to the overall property pool, not just one asset.  Ask your lawyer for advice if you are worried this will happen. 

Conclusion

Financial separation is an important step towards making a new and independent life after a relationship ends, and it is usually a hard and confusing time.

But with a good and supportive lawyer by your side, the process can proceed smoothly by negotiation and mediation, wholly avoiding becoming embroiled in destructive court proceedings yet grounded in principles of a fair outcome for you.

Call Rockwell Family Law to make your financial separation as straightforward and fair as possible.

Family Law matters, such as separation or divorce, are uncomfortable at the best of times, made all the more stressful when it comes to how to fund the legal action required to arrange a fair settlement.  Often a couple’s money is tied up in assets – either a property, business or a trust, and sometimes in the name of one person but not the other. 

Are you currently in the process of a divorce, property settlement or other family law matter, and worried about how to finance upfront for your legal representation? 

To give you the best representation possible and to ensure an even playing field, we work with a leading family law finance provider, which offers you the easiest, most flexible and fairest way to fund your legal needs.

How family law finance funding makes fair legal representation possible.

From the start, your legal team will need money for research, consulting with you, negotiations, legal documents, handling of the settlement, a mediator and (to be avoided if at all possible) fees for court proceedings and a barrister to represent you in court.

Securing finance for all this can be a frustratingly closed loop: To get fair settlement on a property, you need available money from the start, which you don’t have because your finances are tied up in the property.

Hopefully the process will cost less rather than more, but when people experiencing strong emotions are involved, both time and money needed are somewhat unpredictable, and funding for the unknown is extra stress that you don’t need. 

People in this situation may approach their banks to take out a personal loan or use their credit cards which usually means high interest rates, to fund their legal fees.

This often puts the person with less income or access to funds in a vulnerable position, as the one with the money can simply drag the case out.

For the legal process to be fair, it is important to secure representation without being hampered by the spectre of financial barriers.

What is Family Law Finance Funding?

Family Law Finance Funding is not an up-front loan, but a line of credit secured by the amount that your claim to the overall assets of the relationship are worth, and then taken out of that settlement amount. That is, you get legal representation first, and pay only upon settlement.

Throughout the process, any legal costs are added to the account as and when you need them, so interest fees accrue only for the amount and from the moment that each item of work is invoiced to you.

Payments are made directly from the funder to the provider of the legal service, so it does not involve handling of any money by either party in the case. This is easier for everyone involved as well as removing the potential for mishandling of money.

How Rockwell Family Law can help

Rockwell Family Law is an approved Family Law Finance Funding Partner. Our past and current clients have and continue to benefit from Family Law Finance Funding, we understand the process involved to ensure that your application can be processed in the quickest time possible. We are experienced in supporting our clients should they wish to pursue finance through a Family Law Finance Funding supplier.

Rockwell Family Law is dedicated to our cause: Helping our clients achieve the best possible outcome.

When it comes to separation, your wellbeing is our priority, so we ensure as smooth and stress-free a process as possible. Starting with equity of legal access, right through to the best outcome for you and your family members, we aim for your better future.

As each case is different, we adjust to your needs. We are there for you when and how you need us, and have successfully negotiated cases from the simplest to most complex, from “regular” to unique.

Working with empathy for our clients enables us to see where the inequities in a case may exist, and as our aim is justice for all, we do what we can to make sure each party has fair access to legal services.

Legal Funding is a strong and positive step in saving people from stress and uncertainty, while giving people equitable access to justice.

Who is eligible for Family Law Finance?

To be eligible for Family Law Finance, firstly you need to have been in a long-term relationship. At the centre of the dispute there needs to be a property, but in some exceptional cases it may be another asset, such as a business or family trust. 

The amount this fund will cover is based on the value of the property and how much claim you have over it, so on a case-by-case basis, the minimum amount is dependent upon the potential costs to pursue the case.

Approval is decided in a matter of days, not weeks as a normal loan might take. This allows you the relief of knowing that the case will be started and resolved sooner rather than later.

With our preferred loan provider, there is no minimum amount to be eligible for Family Law Finance, there are no additional monthly fees, and approval is within 48 hours to 7 days of application. This is a huge relief to those awaiting financial approval, who would otherwise have to wait up to 6 weeks to know if they can go ahead, get it settled and move on with their new life.

With another of our providers, approvals can be provided in urgent circumstances in less than 24 hours.  This funder will also help meet accommodation, bond, payroll and other costs other funders won’t consider. 

Choose Rockwell Family Law, for exceptional legal service and dedication to your future.

Divorce or separation is a tough time, made harder for the stress of finding the money to pay a lawyer, and we are conscious of the unintentional pressure this can impose upon people to accept a  low-ball offer when justice says they should receive more.   Legal funding solutions can help remove some of this pressure to ensure a fairer outcome to people.

Enabling access to finance for your matter is just one of the many ways in which we live out our aim of working with you to resolve your matter fairly, and to give you your best possible future.

Call us today to find out more about what options are available to you when working with Rockwell Family Law, to help you to get the fair legal process you deserve.

Most couples start a relationship reluctant to consider the prospect of marriage, let alone the implications of a breakup. However, with around 80 per cent of couples living together before marriage, de facto relationships are increasingly common in Australia. They are also most likely to end in separation.

Let’s face it. Relationships can be messy at the best of times. Can you be in a de facto relationship while married? What if there are children involved? Do you both agree on when your relationship started and ended?

It’s important to know the legal implications of a de facto relationship. If you’re in the process of separation, understanding your rights and responsibilities could make the difference between a lengthy mediation and a straightforward resolution.

What is A De Facto Relationship?

Australian law defines a de facto relationship as a couple living together on a genuine domestic basis. The Family Law Act 1975 recognises:

• Opposite sex or same-sex couples
• A married person who is in a de facto relationship with another person they’re not married to
• Being in more than one de facto relationship at the same time

There’s no simple definition of a de facto relationship. Whatever your unique family situation, Rockwell Family Law is here to provide fair and sensitive solutions. We can advise you on your circumstances and help you navigate the separation process with empathy and discretion.

Is a Boyfriend or Girlfriend a De Facto Relationship?

To work out if your boyfriend or girlfriend is legally considered a de facto relationship, here are the main guidelines: 

• If you’ve been living together for over two years
• If you have shared financial debts or joint bank accounts
• Whether you’re both committed to future plans 
• If the relationship is sexual 
• If you’ve had children together
• Whether one of you is financially dependent on the other
• If you’ve shared a home or bought property together
• Whether your public image is perceived as a couple 

While these are the most relevant aspects, not all of them need apply. When it comes to family law, your particular situation and any other factors that might affect you are taken into consideration. For example, if you live for periods apart due to business travel.

Do You Have To Register a De Facto Relationship in Australia?

As a de facto couple, you can access similar rights and entitlements to married couples. It’s not a legal requirement to formally register a de facto relationship. In the absence of registration, the guidelines mentioned above will help to determine the nature of your relationship and your rights and responsibilities accordingly. 

Reasons to Register a De Facto Relationship

In the event of a dispute between parties, how to prove your de facto relationship status may become an issue. While most couples can resolve their situation amicably, there can be disagreement regarding when a relationship began or ended. By formally registering your de facto relationship, you’re assured it will be legally recognised without any need to provide evidence.

A relationship certificate is a state government document that you can use for various purposes such as inheritance, tax or superannuation benefits. For example, in the event of a partner’s demise without a will, a relationship certificate ensures de facto relationship entitlements after death. Without it, you may have to provide proof of your relationship to make a claim. 

For those with significant assets in a de facto relationship, a Prenup or Binding Financial Agreement (BFA) can provide lasting peace of mind. The BFA formalises the division of your joint assets and liabilities in the event of a relationship breakdown. At Rockwell Law, our specialist team of family lawyers can help tailor a BFA for your needs.

De Facto Relationship Property Rights

When a de facto relationship ends, assets will need to be divided between both parties. De facto relationship breakup entitlements can extend, for example, to property, vehicles, business interests, shares, insurance policies or superannuation. Assets obtained before the relationship started are included in the property settlement entitlements. 

It’s vital to obtain independent legal advice as soon as possible after separation. With our experience and understanding of family law, we can guide you through this stressful time with the best legal representation. 

Protecting Assets in a De Facto Relationship

While estate planning is important for everyone, it takes on special meaning for high-net-worth individuals. A de facto relationship has serious implications for your estate. It’s essential to review your estate planning so you can safeguard your existing dependants’ financial security.

The issue of how to protect your assets from a de facto relationship breakdown can be resolved with our expert advice. Our estate planning team takes into account your future goals to secure your assets in circumstances as varied as relationship breakdown or personal injury.

What are The Disadvantages of a De Facto Relationship?

The main drawback to de facto relationships is the evidence required if a dispute needs to be settled through court. How to prove a de facto relationship may seem simple, but it’s less straightforward if parties disagree on the length or expectations of their relationship. Without a relationship certificate, the court must confirm the relationship existed before it can proceed with property settlement. 

The uncertainty of a court outcome can be emotionally and financially stressful. De facto parties who separate have two years to make a claim. Disputes can occur about when the separation began, which impacts the timeframe for initiating legal proceedings. 

Is a De Facto Relationship Legally Binding?

De facto relationships are recognised under family law. In the event of a relationship breakdown, you can apply to court for property settlement or child maintenance. 

If your relationship has not been formally registered, the court will need evidence to prove the existence of the relationship. 

A practical option for de facto couples is to enter into a Prenup or Binding Financial Agreement (BFA). By signing a BFA, a couple chooses to waive their rights under family law to apply for a court order should their relationship end. You can enter into a BFA at any point in your de facto relationship, including after the relationship breakdown.

Compared to the emotional and financial stress of going to court, BFAs are a cost-effective solution. We can provide the specialised family law advice you need to achieve a fair and just outcome for you and your partner. 

How Do I Register for a De Facto Relationship in Victoria?

You can register your de facto relationship in Victoria with the state agency, Births, Deaths and Marriages Victoria. For the purposes of Victorian state registration, a de facto relationship is referred to as a domestic relationship under the Relationships Act 2008. 

Both opposite sex and same-sex couples can apply to register their relationship. The turnaround time for registration is 28 days to allow for a cooling-off period. 

For More Legal Advice Regarding Prenuptial Agreements, Property Settlements or other Family Law Matters, Contact us at Rockwell Family Law

You’ve worked hard to achieve your goals so it’s worth the investment to protect your future income or estate. Any perceived disadvantages of de facto relationships can be overcome with insightful planning and sensitive legal advice. Our team can support your long-term vision for your financial security and peace of mind. Whether you want to chat through prenuptial agreements, property settlements after separation or other family law matters, book a Rockwell Family Law consultation to discuss.