Protecting property considered “at-risk”
The breakdown of a relationship can bring out the worst in people. Bad behaviour is a common response to moments of desperation, hurt and bitterness.
One of the most prevalent bad behaviours in financial separation is an attempt to deal with assets to the detriment of the other party – particularly where there is a history of deceitful conduct, financial control or family violence.
What does this look like exactly? Hiding assets, selling property without the other party’s consent, excessively spending joint funds without the other party’s consent and re-organising financial entities to prevent the other party from receiving a fair property settlement.
If your situation suggests that your asset pool might be at risk, a number of DIY options are available to preserve it so that a just and equitable financial settlement can be achieved in the long run.
Intermingled finances and joint accounts are a common feature of relationships. This complicates the ability to protect property as it isn’t always clear as to who owns what.
If you have concerns about the draining of joint accounts, a “two to sign” mechanism is a good option. By requiring both people on the joint account to approve a withdrawal or transaction, there should never be an instance of unapproved expenditure or unilateral cash withdrawals.
This goes for term deposits, investment accounts, credit cards, savings accounts and mortgage accounts with available credit or redraw/offset facilities.
Think about whether your access to joint accounts might be removed and the effect this would have on you. It might be prudent to withdraw some funds from joint accounts and preserve them in a new account to meet legitimate costs of living and legal fees.
Such measures are not taken lightly by the Family Court and ramifications should be considered carefully before any action is taken.
If your income has always been deposited into the joint account, consider opening a new bank account in your name only and having your income deposited there instead. You will then have unfettered access to your own income.
If you go down this route, be sure to:
- Disclose details of your new bank account to the other party if you are already engaged in family law proceedings; and
- Update direct debit details so that you do not default on recurring debt service payments.
If your income is already deposited into an account in your name, consider whether your former spouse or any other party is a secondary cardholder to that account and whether this access should continue.
Logins and passwords
If you and your former spouse have historically shared online banking or investment logins, change these. If the other party’s access to funds is denied by doing so, ramifications should be considered carefully before any action is taken to protect property.
Similarly, it is prudent to change the passwords to your email accounts and electronically stored files if your former spouse knows them.
Although improperly obtained evidence can attract criminal charges, this may not deter a sneaky former spouse from accessing your emails for the inside scoop on your confidential legal advice.
It may be appropriate to request that your former spouse give a written undertaking, a promise that they will preserve the asset pool or maintain access to finances. Undertakings can be general or they can be specific in relation to a particular “at risk” asset or liability.
Undertakings can be a cost-effective tool to maintain the financial status quo, avoiding the need for interim applications in the Family Court.
If made on a mutual basis (both parties making the same promise), undertakings can also be useful to level the playing field and establish a level of goodwill between parties.
From a strategic standpoint, the failure of your former spouse to provide a reasonable undertaking to preserve the asset pool is not a good look. This conduct may be relied upon as persuasive evidence in support of future Family Court applications.
Forensic accounting assistance
It is not uncommon for financially savvy spouses to intentionally complicate finances. This is usually an attempt to confuse the unwitting spouse, decrease the overall value of the asset pool, hide assets or alter income streams.
In these complicated financial cases, it might be useful to engage the assistance of an independent forensic accountant to provide litigation support and analyse records. The findings of a forensic accountant can helping you in protecting property as they may even be relied upon as evidence in subsequent family law proceedings.
Do it yourself but don’t do it alone
Before you make a move, seek legal advice.
Time is of the essence in these types of cases and as such, the ability to provide clear instructions to your family lawyer in an initial consultation is invaluable.
You should endeavour to provide as much information as possible about the assets, liabilities and resources of the relationship, as well as each party’s various contributions throughout the relationship.
It is also useful to provide information about the current legal ownership of property within the asset pool, if that is available to you. Basic ASIC company searches and personal name searches assist in this process.
Last but not least, it is essential to prepare clear instructions on the following:
- the personality of your former spouse and their prior conduct, including financial dealings with other people or entities;
- the circumstances of your separation; and
- the current level of animosity between you both.
An experienced family lawyer will be able to conduct a risk assessment, advise on the best course of action and determine whether Family Court assistance is appropriate for protecting property.
It may be the case that lodging a caveat or making an ex parte or urgent application to the Family Court is necessary.
If you would like to know how this applies to your situation, please call us now on (08) 6381 0208 or fill out this form to schedule your first 30-min free telephone appointment. Loukas Law are the leading family lawyers Perth clients can trust to help them build a future they can live with.