Some common phrases we hear from people seeking family law advice include:
- “I had the house before we married, so that’s not included”; Or
- “but I got that as an inheritance from my grandmother, so that should be left out”; Or
- “I bought the lotto ticket from the newsagent, so it is mine.”; (this one is less common than the other two, but not as rare as you may think!)
The answer to all of those scenarios is…not necessarily.
Yes I know, I know, that is such a typical lawyer answer – no guarantees. But unfortunately in Family Law in particular, unless you have a Binding Financial Agreement, there are no certainties.
In property settlements under the Family Law Act, both for married and de facto couples, the first thing the Court examines is the asset pool. This includes everything: the investment property in your sole name, the shares you bought before you were married, your superannuation, the house you bought with your inheritance or lottery win…you get the idea.
But that is not the end of it. There are still 3 more steps left for the Court to consider before they decide what settlement each of you should receive and from which assets.
The key thing to remember, is that you should not make assumptions about what will or will not be included in a property settlement. Get advice from a specialist family lawyer and if at all possible, get that advice before you get married or start a long term relationship, so that you know your options in relation to asset protection.
By Kasey Fox, Farrar Gesini Dunn Lawyer.