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19 October 2018

Second helping?

Family Law
Federal

Asked

Informal property settlement – Further adjustments

Good morning

Our client and his wife separated in 2015 after a long-term marriage and the couple agreed on an informal property settlement.

The wife doesn't have a great sum of superannuation and our client's amount is quite large. This was factored into the informal property settlement in 2015, with our client to retain his superannuation.

The parties recently divorced and now the ex-wife, having received legal advice, seeks to claim 60% of our client's superannuation.

Does the ex-wife have the right to this claim? If so, does the informal property settlement in 2015 carry any weight in the adjustments to her claim, where she took the lion's share of the matrimonial assets and our client was to keep his super?

Regards

Answered

Thank you for the question.

The informal settlement is just that, informal, and does not prevent a claim being made under the Family Law Act. Whether the wife would be successful with a claim is another matter.

The husband may assert that it is not just and equitable to make any further adjustment to the property of either party, as the parties had an informal agreement which he relied upon. The authority for this argument would be Stanford v Stanford [2012] HCA 52, as applied in the case of Bevan & Bevan [2014] FamCAFC 19.

The husband’s affidavit material would need to set out the terms of the informal agreement and any documentary evidence, including emails and text messages, evidencing the agreement. Evidence from third parties who may have been aware of the settlement could also be useful. The husband will need to detail how he has relied on that agreement and has arranged his financial affairs accordingly after the agreement.

Regards

Mentor