“My assets are not in joint names so they are safe”

Hello everyone,

It is a common misconception that at the end of a marriage or a relationship that one spouse can not claim against assets that are in the sole name of the other spouse.

I am often told by clients ‘I made a mistake and let him put it all in his name” or “I don’t know what we have, she would never let me see any of the accounts and everything was controlled be her”.

In simple terms it does not matter if an asset in one name, joint names or in the name of a private company or trust. If the asset is in the control of one of the parties and is in existence at the end of the relationship then it is one of the assets available for distribution.

Even if the asset was in the control of the party shortly prior to separation and has been sold or given away since separation it will be taken into account.

The Family Court has wide ranging powers to set aside transactions which have been undertaken with the intention of defeating the claim of the other spouse. So if the money and property in the name of wife is now all of a sudden in the name of her father, the court will be able to set aside the transfer of land and order the return of funds.

The same goes for shares in private companies such that if a spouse has control of a company but then suddenly, at about the time of separation, gives control or transfers his or her shares to a relative, friend or business associate, then once again the court can overturn the transaction.

The court will not set aside legitimate transactions to independent third parties, such that if a boat that is valued at $100,000.00 is sold to a stranger through e-bay for $25,000.00 the court is unlikely to set aside the transaction and the stranger will just benefit from a good deal. But the spouse who sold the boat for the reduced rate will probably be deemed to have received a $100,000.00 and not $25,000.00 when everything else is being divided. That spouse will also have questionable credit if a Judge has to decide who is telling the truth and who is lying in relation to other transactions that have occurred during the relationship.

People spend a lot of time and money trying to hide assets from their spouses, but in most cases these assets are able to be found by issuing a subpoena for bank accounts, telephone records or accountant’s notes.

If you are in a relationship your spouse might not know where all your assets are, but it is likely they will know where to start to look, because of conversations you have had directly with them, conversations they have overheard or as a result of mail or documents they have seen whilst you have been living together.

There are very few transactions which are not discovered, and thus there is little point in trying to hide things. That said if there is money in an account overseas or an interest in a new venture that has not been disclosed during family law proceedings and is only discovered years later, the person who was lied to has the right to go back to court and ask that any agreement that was reached be set aside and that new orders be made to take into account the undisclosed asset.

The obligation to make full and frank financial disclosure is absolute and if you have control of an asset even if it is not in your name then it needs to be taken into account.


As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555