Whether you are concerned that your ex-spouse is going to do this, or whether you’re considering doing this yourself, it’s important to take into account a few things:
- Just because an asset/property is no longer in a person’s name doesn’t mean that it won’t be divided with an ex-spouse. The Family Court has extensive powers to deal with assets that have been transferred out of a spouse’s name, including ordering that the asset be transferred back, notionally adding back the transferred asset or otherwise making an adverse finding against the transferring spouse.
- While a Court has these powers, often the difficulty for the other spouse is that they may not be able to prove that their ex-spouse actually transferred the asset or even had the asset to begin with.
- If there is a dispute about whether a particular asset belongs to a spouse or a third-party, the third-party may well be joined to the dispute/court proceedings, which inevitably complicates the case further.
- If the hiding spouse makes false declarations or swears falsely about their assets/financial position, not only could this have negative ramifications for their asset division, but they could even been criminally charged for making false statements or perjury.
Steps to protect your assets
There are a range of steps that may be available to you to protect your assets if you are concerned that your ex-spouse may transfer assets or money away, for example:
- Requesting that the bank change the authority to “2-to-sign”, before any transfers/withdrawals/redraws can be made on any joint bank accounts, including offset accounts and mortgage/loan accounts;
- Lodging a caveat over any properties under your ex-spouse’s name – it is important that you first obtain legal advice before lodging a caveat, as you can only lodge a caveat over a property in which you have a “caveatable interest”. If you are found to have improperly lodged a caveat, you may be responsible for paying any additional costs and/or loss suffered by the innocent party as a result of your lodgement.
- Issuing urgent court proceedings to injunct (prohibit) your ex-spouse from transferring/disposing of an asset, such as funds held in a sole bank account or business bank account or transferring their shares in a company to third-party. You should seek legal advice prior to issuing court proceedings. Court proceedings can only be issued in the family law courts if the court’s pre-action procedures have been complied with.
If you are concerned about your ex-spouse hiding, transferring or otherwise disposing of assets of the marriage/relationship, it is critical that you obtain expert legal advice as soon as possible so that steps can be taken to protect your interests. Delaying could result in assets being disposed of and if this occurs, the assets may not necessarily be able to be “clawed back”.
Our expert family lawyers in Ringwood and Mount Waverley can formulate and execute a strategy to best protect your assets and interests in a separation. Please contact us on 0421 397 316 or at jlok@oikosfamilylaw.com.au to find out more.
