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Why you should check with a separation lawyer about enforcing a property order against you ex’s superannuation

You may settle your property arrangement with your former partner by agreement, with assistance of a separation lawyer or by judgment of the Court. This may include for property to be transferred to one of you, or for a cash payment made in exchange for an interest in property.

But what happens if you have these orders, but for one reason or another, your former partner has not completed their end of the bargain? What if your former partner is to pay you a certain sum of money by a certain time, but the time comes and goes, with no payment from them? What if, after seeking legal advice and looking to enforce the orders, you find they have no means of payment? If they have no substantial assets, can you make an application to the Court and seek the monies they have agreed to give you are taken from their superannuation?

At its simplest, superannuation in Australia is a heavily guarded form of savings. It is intended to be something that you rely upon in your golden years of retirement. As such, a component of superannuation legislation is built around protecting it from creditors that would otherwise seek to recoup their losses and leave the debtor penniless in their old age.

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Impact of Divorce on Retirement

Often during a highly stressful divorce or property settlement, for instance where domestic violence may be involved or the parties are simply eager to settle quickly and move on with their lives; individuals are readily settling without consideration of future financial stability. In particular, an article by Patricia Babalis (link below) highlighted a report by the Swinburne Institute for Social Research which discovered that at divorce, asset settlement ‘is often mishandled due to emotional tension and ignorance of what can be included in a settlement’. Further, the article touched on the reality that is financial instability from divorce. Where separating parties do not achieve a settlement that ensures future stability, individuals may find themselves struggling in their retirement plans due to reduced super balances and sale of property.

 

In reiterating the words of Babalis, divorce is a stressful and sometimes unexpected time. However, ‘knowing what you may be entitled to could be a good start to making sure asset distribution is fair.’ Our specialist separation lawyers are able to give you the guidance you need in regards to your current situation, as well as ensuring the best for your future long term financial position.
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Separation Lawyer and Property Orders

Clients often ask their separation lawyer, “What kind of property Orders will the Court make?”

In the 2012 case of Stanford; the Appeal Court of the Family Court decided that in some cases, the Court may decline to make any property Orders between partners who have separated. Most parties who commence their case in the Court expect that the Judge will make some type of Order for a property adjustment.
In the case of Stanford, divorce lawyers saw that sometimes the Court will not make any order. Before the Court makes an Order the separation lawyer needs to be able to show that it is just and equitable to do so.

In that case the separation lawyer for one of the parties was able to show that because of the way that the parties to the relationship managed their finances separately during the relationship, that the arrangements that they themselves had worked out should not be changed. Although they had been together for many years and one party had a lot more in assets and super than the other party, the Court chose to not make a property Order.
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