“What’s mine is yours and what’s yours is mine” …but what about the joint bank accounts?

Most people who are married or in committed relationships intertwine their finances. Typically, this takes the form of joint ownership of the family home, motor vehicles and of course the joint bank account (or credit card).

While most people realise there is a process to divide assets and work out who receives what, in our experience there is often confusion regarding the law surrounding accessing jointly held cash.

Common questions people ask family lawyers are:

  • Can I take my half from the joint bank account?
  • Can I take all of it?
  • He/she has transferred it to their account, but I know the banking passwords – can I take it back?
  • How can I stop him/her accessing the joint account?

What’s ours is mine…

When people co-own a bank account both parties are equally entitled to access all of the money i.e. they don’t own half each. They each own the full amount.

This means that whoever gets to the bank first (figuratively speaking – probably the computer first) can legally clean out the joint account.

In this situation it would be necessary for the party who didn’t take the money to take further steps to protect their interests. Neither the bank nor the Police would bear any responsibility to rectify the situation.

Fortunately, however the Family Law Act 1975 does contain remedies and provide Judges with power to address this situation on an interim, or final basis.

For example, if someone was to transfer money to their own account from the joint account, the Court would be able to make Orders, such as, for some or all of the money to be paid to the other person, restrain a person from further dealing with the money, or Order that it be paid into a trust account pending the final determination of all of the issues.

What’s yours is mine…

It is also not uncommon for married couples or people in de facto relationships or other committed relationships to share passwords, pin numbers or banking details (their banks would be angry if they found out).

We have also encountered situations where some people regard being married, or in a de facto relationship (particularly for a long time) as granting equal rights to property. This is not the case.

Being married or in a relationship does not convey property rights.

People may have a common use of property, but ultimately if property is not jointly owned it generally belongs to one of them.

During the relationship it may have been ok to use credit cards, bank accounts or make bank transfers from your partners account but only because this was impliedly or expressly authorised.

If there is no authorisation from the owner, then accessing funds in the above manner may well be stealing, and land you in hot water with the police.

As a general rule, if you’re separated do not use the ex-partners cards or accounts unless there is an express authorisation (in writing).

What’s mine is yours…

The Family Law Act 1975 empowers the Court to adjust interests in property provided the Court does “justice and equity” i.e. the court can take what’s yours and make it his or hers.

The Court also has a number of powers (alluded to above) that can assist in making sure property that may be distributed between the parties to the relationship, is protected until such time as all of the matters are considered.

There is also steps that people can take themselves to avoid Court, unnecessary costs and inflaming the situations. Some examples are:

  • Contact the bank and see if they have an ability to “freeze” an account at the behest of one party;
  • Have a discussion with your ex-partner. Ask them whether they will agree to splitting the funds a certain way, or whether they will agree to having the money deposited to a neutral third party such as a solicitor’s trust account, to be held for both parties.

If in doubt and before taking action that you feel may not be right or may likely inflame your situation, please contact a family law solicitor at Hooper Family Lawyers at Victoria Point or Coolangatta on 3207 7663 for advice.

Alternatively for more information we have many helpful resources on our website.

Accredited Specialist Family Lawyers Gold Coast and Coolangatta

Hooper Family Lawyers is making a sea change…of sorts…we’re staying in the Brisbane Bayside (we love it here) however we now also have a branch office on Griffith Street, Coolangatta.

We will be offering specialised Family Law advice to the Gold Coast and Northern NSW regions including:

  • Family law advice;
  • Consent orders;
  • Parenting Plans and child custody matters;
  • Mediation;
  • Property settlement;
  • Spousal maintenance;
  • Domestic Violence protection;
  • All other aspects of de facto and family law legal and Court representation.

Our office in Coolangatta is situated within walking distance to the Magistrates Court at Coolangatta, and we will be providing representation in the Federal Circuit Courts at Lismore and Southport, as well as representation in the Brisbane Family and Federal Circuit Courts.

For us this is an exciting opportunity to grow our firm, forge new relationships, and provide our expert family law services on the Gold Coast and Northern NSW.

Our mediation services via “Decide Mediation” will also be available from the Gold Coast office, and we are available to travel for mediation from Brisbane to Coolangatta and Northern NSW.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost effective manner. Please contact our Coolangatta office on 1800 891 878 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://www.hooperfamilylawyers.com.au/

You may have received information about property settlements from television shows, back yard BBQ’s, people you know, and good old Google searches. There’s a problem with this, though. Only your divorce lawyer (also called a family lawyer) can properly advise and guide you through the settlement process.

When you don’t have a family lawyer, what you find, hear or read
might not apply to you, like these five (debunked) myths below.

 

Myth #1: We can only start dividing property once we divorce

Not true. You can begin settlement proceedings when you separate. Calling your family/divorce lawyer is an important first step to take if you know there’s no chance of reconciliation.

Getting the right information early assists in minimising conflict, obtaining faster resolution and reducing legal costs.

Your divorce lawyer at Hooper Family Lawyers will answer any questions you have during an initial consultation, which can take up to two hours. Bring any documents you believe are important and make a list of you and your partner’s assets, superannuation and liabilities.

 

Myth #2: Everything is a 50/50 split

Just because you’re married or in a de facto relationship doesn’t mean assets are split 50/50 on separation.

The law requires that the contributions and future economic circumstances of the parties are examined. The amount of time the parties are together and number and age of children is often examined in assessing how much one side will receive.

The contributions of the parties are not just financial, but also non-financial and as homemaker and parent. Financial contributions do not rank more highly than others. That saying ‘money isn’t everything’ certainly applies here.

 

Myth #3: The only way to end this is going to court

Your divorce lawyer, divorce lawyer or family lawyer assists you to avoid going to court. Most will regard it as the last option. Instead of going to court, most divorce cases can get settled through mediation.

Even if court proceedings begin, the process is very much geared towards settlement. There’ll be directions for a conciliation conference or mediation ordered early on. Statistically, of the matters that begin in court only about 2% to 5% go all the way through to a final hearing.

 

Myth #4: The breadwinner will get more

The Court looks at the contributions that are direct and indirect, financial and nonfinancial. They also regard the acquisition, conservation and improvement of the properties for settlement; and as parent and homemaker, when it comes to adjusting property and superannuation. Even if one parent was a homemaker and didn’t work, they still contributed significantly to raising the children and maintaining the home. This is regarded the same as the breadwinner’s contribution.

When deciding how to divide property, the Court looks at the following:

  • The net value of the property, assets and superannuation
  • Contributions both parties have made over the years
  • The future needs of each side

 

Myth #5: My partner cheated, so the odds are in my favour

The Family Law Act 1975 introduced the concept of “no fault” divorce. Therefore the majority of judges aren’t concerned with any alleged misconduct from one side. Not even when the misconduct could be regarded as “immoral” or similar.

This changes if the misconduct has an economic impact. Where there has been a negligent, reckless or wanton destruction of property, the conduct of whoever’s responsible is considered. Gambling or even the effect of domestic violence on property are examples of this.

In child custody cases, behaviour/conduct is closely examined. The conduct, though, must be relevant to best interests of the child, especially when protecting them from unnecessary risks. Will the settlement affect a parent’s ability to keep their kids safe from emotional, physical or sexual harm?

The above are some of the “myths” commonly encountered, but there’s plenty more out there. You best way forward is to trust a family law expert, your divorce lawyer. We set you on the correct path from the moment you walk into your consultation.