Future assets of your former spouse - what are you entitled to?


Considerations of the Family Courts when dividing assets

If you’re going through a divorce or separation, you’ll be starting to look at how to separate joint assets into ‘mine’ and ‘theirs’.

The question is though, legally, what are you entitled to? The views of the Family Courts when determining what makes up the combined assets of a de-facto or married couple are often quite expansive. 


What's included in a Property Settlement?

Generally speaking most assets, irrespective of whether they are from before, during or after the relationship, are included for the Court’s consideration. This gives the Court the opportunity to see the full breadth of finances available to the parties, and to weigh up any other relevant circumstances when deciding how they should be divided. Read: What's included as property?

These matters become more complicated, however, when the Court is asked to take into account future assets (assets not yet possessed by either party, but that they will become entitled to at some future time). This was the case in the December 2016 decision of Gilmartin & Gilmartin heard in the Federal Circuit Court of Australia.


A complicated case study

The case concerned a 25-year relationship where the parties had two children who were 17 and 26 years old at the time of the judgement. In addition to the asset pool (which had a combined value of less than $50,000), the wife asserted that she was entitled to a portion of the $100,000 inheritance that the husband stood to receive from his late mother’s estate. 

Judge Bender noted that in addition to the parties being separated for the two years immediately prior to his judgement ‘it is not asserted that the Wife contributed in any meaningful way to the physical care of her mother-in-law prior to her death in 2016’. However, applying the reasoning used by the Court in the 1992 matter of Bonnici, Judge Bender nevertheless found that the Wife was entitled to a portion of the estate due to the highly unusual circumstances of there being no other significant assets available for the Court to divide.

The matter of Gilmartin provides a useful indication of the considerations that the Courts have when deciding whether to include of a future asset (or an asset received post separation). Judge Bender found that the following had particular importance: 

  1. The financial and non-financial contributions of the parties throughout the relationship (and whether the division of their assets adequately compensates for those contributions); 
  2. The role that the parties played in the management of their individual and/or joint finances during and following the relationship; and,
  3. Whether or not it is just and equitable for the Court to intervene. 

If you have any questions about the division of assets following separation, contact: 

This article is republished by Divorce Resource with the permission of the author, Kirstie Barfoot.  

The article was originally published by Coleman Greig Lawyers.

Email Kirstie: kbarfoot@colemangreig.com.au



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