A property settlement whether court ordered or by agreement is to finalise the financial relationship between parties. You can conduct a property settlement as soon as you are separated, you do not have to wait until you are divorced. When entering into property settlements the parties to a separation are advised generally of the Family Courts method of considering how to split the property.
General principles for a court to settle financial disputes include:
– Working out your assets (including superannuation) and debts and what they are worth
– Direct and indirect financial contributions (wage, salary earnings, gifts and inheritance)
– Non-financial contributions to the marriage/de facto relationship (caring for children and homemaking)
– The length and standard of living during of the marriage/de facto relationship
– Future requirements (age and health)
– Future resources, including financial resources, care of children and ability to earn, child support, the financial situation of someone with whom you are now cohabiting, any legal obligation to support other people in the household.
Some individuals may think that what they receive by way of inheritance is theirs and that inheritance is different to all other assets of the marriage/defacto relationship. They may believe that when a property settlement is finalised, an adjustment is made so as they retain the whole inheritance. This is not the case.
Each case turns on its own circumstances. Whether an inheritance is kept separate or is split is subject to numerous factors including:
– The length of the marriage/de facto relationship
– The size of the inheritance compared to the size of the asset pool
– Whether the inheritance has been intermingled with the asset pool
– Whether the inheritance was before or during the marriage/de facto relationship.
If it was after the marriage/de facto relationship then it could be shown that the inheritance should remain in the hands of the party that received it. The Court’s discretion generally depends on the division of the asset pool and assets of the parties.
Future Inheritance Expectations
Whilst the expectation of the receipt of future entitlement under a Will may be considered, there are numerous reasons as to why it should not be considered. For example, the testator may change their mind and their Will. It will only be in limited circumstances that a future expectation under a Will can be seriously considered.
If you require advice regarding Family Law or Wills & Estate Law including inheritances please contact Quinn Lawyers. Call us on 02 9223 9166 or submit an online enquiry.
The above is of a general nature and is not legal advice.
By Andrew Goddard