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SingleMum.com.au Exclusive by Regular Contributor Pamela Cominos - Lawyer


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Adding Back Assets in Family Law Property Matters

Is your ex cashing in on your share?

Pamela Cominos, Lawyer, for Single Mum Australia





A common issue that arises in property matters and one that causes the greatest of angst to most people are circumstances which involve one party using joint funds or property for their personal use and or benefit.

The full Court of the Family Court of Australia has identified three categories where it is appropriate to add back monies/and or assets that have been used by one of the parties. However this is not a finite list and there will be other circumstances where add backs will be appropriate. It is a matter of determining whether such an add back is necessary to do justice and equity to the parties overall.

It is important to bear in mind however that the Court will not generally add back monies spent on post separation living expenses, such as clothes, medical treatments and household utilities expenses, where they are considered as reasonable living expenses.

Has this happened to you?


Has your ex has used joint funds to pay their legal bills?

Then you would be entitled to argue that these funds should be added back to the asset pool. Section 117 of the Family Law Act makes it clear that each party to proceedings under the Family Law Act shall bear their own costs unless the Court orders otherwise.

Allowing one party to dip into matrimonial monies and use this money for the sole purpose of paying legal fees is contrary to the intentions and principles of section 117 of the Family Law Act.

However if your ex can show the money that he/she used to pay their legal fees was from post -separation earnings that is a different matter and ordinarily, this money would not be added back to the asset pool. The main factor which will be considered is the source of the funds.

Has your ex -partner has just cashed in on their superannuation and used the money to go on a holiday?

In this instance, a premature distribution of the asset has been made by one party without the knowledge and consent of the other and would justify the Court to add back this asset, even though it no longer exists, in fairness to the other party, who would have had a legitimate claim to this property but for the conduct of the other. The matrimonial money spent on a holiday has benefited only one party and as such it would be unjust to not add it back notionally.

Has your ex been reckless and deliberately reduced the asset pool?

A general guideline in property matters under the Family Law Act is that losses incurred by the parties to the marriage or de facto relationship should be shared by them (although not necessarily equally). However there are some exceptions to this and they are as follows:

a. Where one party embarks upon conduct that is intended to reduce or minimise the value or worth of the asset pool or

b. Where one party has acted recklessly, negligently or wastefully with the matrimonial assets and the effect has been to reduce or minimise the value of the overall assets.

For example in the case of Kowaliw (1981) FLC 91-092 the husband had lost money by permitting a prospective purchaser to occupy the matrimonial home free of rent or contribution for approximately a year. In the end the prospective purchaser did not in fact purchase the property.

This action was considered reckless and the husband should be solely responsible for the consequent financial loss.

Where one party deliberately damages or destroys property and in effect reduces the value of the asset pool, then this is a matter that must be taken into account in property matters.

All is not lost - section 75(2)(o)

Section 75(2)(o) of the Family Law Act - empowers the Court to take into account any "fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account". As such where a party believes that there has been waste, destruction or deliberate minimisation of the assets, then these matters can certainly be raised and will be considered. At the end of the day, the Court will make the ultimate decision whether conduct by one party is deemed to have disadvantaged the other party financially post- separation. If the court does find that a party has wasted assets, then that party may receive a lesser portion of the property pool or may even be given full responsibility for debts that arose from that party’s actions.

7 November 2011

Pamela Cominos
M.A Dip Ed LLB (UNSW)
Principal Solicitor - Cominos Lawyers

This article contains only general information, correct at the date of publication. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full Singlemum.com.au Disclaimer here



View Pamela Cominos' full Profile

About Pamela Cominos

Pamela Cominos is the Principal Family Lawyer at Cominos Lawyers, Sydney who specialise in all aspects of Family Law.

Pamela holds a Masters of Arts degree together with a Bachelor of Laws Degree from University of New South Wales.
Pamela is passionate about being a lawyer and she is successful in assisting her clients in matters that involve complex parenting and property issues. Pamela is a skilled advocate and will represent you at Court with confidence and care. She is a pragmatic and compassionate solicitor who gives her undivided attention to your matter.
Pamela is committed to her family law practice and in particular women in domestic violence. She is on the legal aid Family Law Panel and is a referral solicitor for a number of Women's Refuges in NSW. You can read Pamela Cominos' full profile here


What does it mean to be a single mum?Of course, the

kids

are the most important thing in a single mum's life. Kids are the focus and always have been. But along with the children, there are other matters that can confuse a single mum's life.

Centrelink

plays a big part of a single mother's life, mainly because this is where a large percentage of single mums get their finances from. Centrelink are the source from where the

single mother pension

, or as it is otherwise known, the single parent payment comes from. The single mother pension is a subsistence amount, but just the same, it is money to live on, and so it is important, no matter if it is called single parent payment, single mother pension or whatever Centrelink welfare classes it at the time

Often, single mums come out of a

divorce

or defacto relationship only to find that their troubles have just begun, and find that their first step leads them towards Family Law - it's time to engage a lawyer.
There are more than just Centrelink finance problems to worry about, as mentioned before, but also

child custody

issues. Child custody is something that hits right at the heart of

single mums

. If a single mother's ex husband or ex partner has been a domestic violence perpetrator, the mum may be greatly worried about child custody. They worry that their kids won't be safe with their spouse, who has already proven to be abusive because they caused

domestic violence

, which resulted in a divorce or separation.

Even so,

Family Court

will often still order a form of child custody named

Shared Parenting

. Shared Parenting is a form of child custody division of time or parental responsibility between the parents. Mother's often look for a good divorce lawyer to try to avoid share parenting with an abusive ex-spouse after divorce, however in many cases Shared Parenting is still the outcome after the divorce, no matter how good the divorce lawyers have been. They will often settle for visitation at a contact centre or access centre where fathers or mothers are supervised during child custody access.

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