What is a partial property settlement?
A partial property settlement is a distribution of assets or financial resources between separated parties in advance of final orders. It is commonly also referred to as an interim property settlement.
Case Scenario
Toby and Evonne separate after being together for 18 years. Toby works full time and earns $140,000 per annum. Evonne works casually, earning $40,000 per annum. They have two children together aged 10 and 14 years. The parties have assets which consists of:
3-bedroom home $950,000
Toby’s Mazda motor vehicle $ 20,000
Evonne’s Toyota motor vehicle $ 15,000
Savings in Toby’s name $ 40,000
Savings in Evonne’s name $ 10,000
Shares in Toby’s name $200,000
After separating, Toby moves out of their three-bedroom home. The children live with their parents equally. Evonne needs some money. She is struggling to meet living expenses and legal costs.
Can Evonne receive a partial property settlement of $50,000 by seeking that Toby sell some of his shares?
In answer to this, firstly, the Court tends to be cautious and reluctant to make a partial property settlement because it takes place prior to the evidence being tested before the Court and a determination on a final basis being made to achieve a just outcome.
However, there are circumstances, under the Family Law Act, where a Court will make an order for partial property settlement, where it considers it is just and equitable and circumstances justify doing so.
In the case of Wenz & Archer [2008] FMCAfam 1119, Federal Magistrate Riethmuller, as he was then, said:
It cannot be the case that a party who has an irresistible claim to a substantial share of the property of the parties should be held out of that property whilst the matter is litigated, left to rely upon applications for exclusive occupation of the matrimonial home or spousal maintenance alone, particularly where the parties are asset rich but have relatively modest incomes (such as the present case). Nor could it be appropriate that a party should be denied the ability to liquidate assets when there are real needs for those resources, such as to meet debts which may result in the party being pursued by creditors, or the need for the party to make payments for the benefit of the children, or to take advantage of other financial opportunities (for example the superannuation contribution cases).
In order to establish a case for partial property settlement, factors which Evonne will need to establish include:
- There is a source of funds to enable the payment.
- Toby is in a position of relative financial strength and has majority of control over the assets.
- The capacity of Toby to fund his own legal expenses.
- The inability of Evonne to fund her legal expenses.
- The interim property order sought will not exhaust or exceed Evonne’s entitlement, or make it such that Toby will not be able to recover any over-payment.
- There is an adequate explanation for why the funds are required; and
- It can be established that it is ‘just and equitable’ (fair) to make a partial property settlement order.
If you can relate to Evonne and would like a partial property settlement, we invite you to speak to one of our specialist family lawyers for advice by contacting our office on (03) 8393 0144 or the blog writer, Winning Wang directly.