Useful financial and family law issues underlying


Relationship Property

Comprises earnings and assets both partners created during their relationship. They are divided equally between both ex-partners. Such assets may include the family home, businesses, chattels, cars and other relationship property built up together.

Problems arise when one partner wants some assets, and actively reduces their value, or has been secretly diverting assets out of the relationship for a period of time or has mixed their earnings and/or assets with their separate property, and claiming it as such. A useful family law link to the Act defining Relationship Property.

Separate Property

Separate property remains separate if acquired out of separate property and any proceeds are separate. Same applies to gains earned from the separate property.

Such property loses it's separate identity if relationship property is applied that increases the value of the separate property. A useful link to the Act defining Separate Property .

Section 38 Inquiry

The Courts can order an independent investigation into the financial affairs of either party. This would occur when there has been no co-operation to provide relevant financial information and records to the Court. A useful link to the Section 38 of the Act.

Intermingling of Separate and Relationship Property

Separate property can become irretrievably mixed with relationship property and thus appear untraceable; every one gives up and treats it all as relationship property. In many instances, with the relevant financial records, the separate property may be traced. A useful link to the Act when Separate becomes Relationship Property and where such property is Sustained by the other spouse or partner. An article on Inheritance Intermingling is of interest.

Relationship Property Agreements - Contracting Out

One aspect central to the Act are the property contracting out provisions of the Act. The Act strengthens the Courts ability to uphold Relationship property agreements. This is an area fraught with difficulty; whether there is an agreement or not; and how the parties behaved financially during their relationship. A useful link to the Act on Contracting out.

Dissipation of Relationship Property

In some cases where there has been a deliberate act to diminish the value of Relationship Property, the Courts can order compensation. Such dissipation would need to be proved. A useful link to the Act on Compensation.

Economic Disparity

Economic disparity relates to the exception to equal sharing. Reduced earning capacities, time and effort during the relationship building up the value of separate property. A useful link on Exception to equal sharing.

Transferring Relationship Property

The Court can take into account in settlement deliberations, relationship property transferred into a trust to the disadvantage of one of the parties. Useful link on disposal to a Trust and a Company.

Death of a Spouse

The family law presumption is that all the deceased's property is relationship property. The onus is on the Trustee or beneficiaries under the will, and/or the surviving spouse to show that all or part of the deceased's property is separate property. A useful link to the Act - Death of a Spouse.

A useful family law link for more information is the Family Court website and the Act itself.

Email Hugh Sutherland if you would like to discuss your family law case.