A reader is worried about her husband continually splashing the cash ahead of their divorce.
QUESTION:
My husband has a lover. They exchange gifts and he gives cash.
His superannuation will finish within a month, given away to many relatives and lovers. He would take and give away as quickly as he could, so there is nothing left in our savings for me. He may be aware I have finally decided to divorce him. We have been married 49 years.
When I divorce him, can I have half the money he has already given away? I begged him, warned him not to do so, but he kept doing it.
If I don’t divorce, can he be married without finalising the settlement?
ANSWER:
When the court divides a couple’s property it considers what each of the partners own at that time. Property that has been given away cannot be divided between you. In some limited circumstances the court may consider that by virtue of having given money away and not devoted the money to the relationship, your husband’s contribution to the assets of the marriage is more limited than yours. This however, is not something upon which you should rely. The court also has the power to set aside transactions which have the effect of reducing the property available to be divided between the two of you. This power will not necessarily be exercised in the circumstances you have described. You need to engage a family lawyer who can consider all the relevant information and advise you about this. The court can grant a divorce without there first having been a property settlement. An application for a property settlement must be filed within 12 months of the date of divorce. Equally, the court can make a property settlement order without later making a divorce order. You can make an application for divorce after you have been separated for 12 months.
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