NSW Husband Spent Our Savings - Entitled to Ask for My Half?

[Soon2bdivorced]

Hi,

My husband walked out on me and my son when I was 32 weeks pregnant with our second child. He was having an affair. We had a substantial amount of savings at that time. This was October last year, and since then he has been using the savings to buy a new car, rent on both properties as he can't afford both on his salary, and also paying credit card bills. Our savings is now less than 50% of what it was.

When we were together we agreed I would take a year off work maternity leave and we could live off his salary. This means our savings would be untouched. Because of his decision to leave the savings have been obliterated. And I have had to go back to work earlier than planned.

I have asked him to split the savings as they were in Oct 2013 as I think it's unfair that my hard earned savings have been used for him to set himself up with a new life. I'm not asking for a lump sum but at the end of the day I just would like the money I've saved to still be there for myself and my kids.

He refuses and says it's just life and I've to deal with it. Do you think if I fought him in family law court that I would have a chance of winning?

 

[Sophea]

Dear Soon2bdivorced,

It is a common misconception that each party to an ending relationship is entitled to 'half'. There are in fact no hard and fast rules, and no one is 'entitled' to anything upon separation or divorce. If you are unable to decide on who gets what and come to a property settlement between yourselves, then you can apply to the court to make a decision.


If you apply to the court to make a decision about property settlement, they will follow this process in arriving at their decision: (The following is an extract from the LegalAid website)

1. First the Court will look at all the property involved. This can be property owned by yourself, your former partner, property you jointly own or even property owned by another person if the Court thinks either person may have a claim to that property. Examples of property include houses, blocks of land, businesses, motor vehicles, shares, savings, furniture and other items such as pots and pans (sometimes called “chattels”). The Court will usually consider all items of property regardless of whose name they are in or when they were obtained.
2. The Court will then look at the contributions of each person. Contributions may be financial (such as wages, inheritances or savings brought into the relationship) or non-financial (such as looking after children and housework). Contributions may have been made before, during or after the relationship (such as continuing to look after children following separation). At the end of this step, the Court can come up with a percentage entitlement to property based on contributions.
3. Thirdly, the Court will look at the future needs of each person. This may include looking at factors such as whether each person works or has the capacity to work, whether there are children involved and who is looking after them, and the age and state of health of each person. The Court may at this stage make an adjustment to the property entitlements of each person based upon their respective future needs.
4. Finally, the Court will consider whether the final division of property is just and equitable to the parties given their particular circumstances. The Court will also consider how the property settlement should be carried out and which particular pieces of property are to be kept by each person.

Therefore, if the court agrees and/or you are able to prove that your husband has squandered your joint savings to set up his new life, then it will award you what it sees fit to compensate for this.

 

[Rod]

My experience, albeit sometime ago, was that anything done post separation but prior to property settlement was not considered by the court.

My-ex failed to make mortgage repayment for 12 months as she was in the house while I was paying my own rent, and the court just said divide up what was left, regardless of the fact that an extra 12 months of mortgage payments had not been paid.