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In many cases, separating spouses are able to amicably resolve how their property is divided after separation. There is good reason though, to have any agreement reached formalised properly. There are potential unforeseen circumstances that can arise which may put the agreement at risk.
In a recent case in the Family Court, the husband and wife had been separated for 17 years at the time of the trial. The only real asset was the former matrimonial home which had remained jointly owned by the parties. The court heard evidence from the wife that she and the husband had come to an ‘understanding’ that she would retain the home. The wife had lived in the home raising the two children of the marriage with little assistance from the husband.
In February 2015 the husband was declared bankrupt arising from his activities after separation. The Trustee in Bankruptcy commenced proceedings in the Family Court for the Husbands bankrupt estate seeking orders for the sale of the former matrimonial home.
At first instance the trial judge made orders for the sale of the home and a division of the property of 68% to the Wife and 32% to the Trustee. The Wife appealed and the Full Court allowed the appeal citing her significant contribution after separation. The Full Court determined that an appropriate division was 80% to the Wife and 20% to the Trustee.
The stress and cost could have been avoided by the Wife if the agreement she had reached with the husband at separation was formalised into orders of the Court.
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