Final Property Settlement and Post Separation Behaviour - Family Law

January 17, 2018

 

When you settle your family court matter and arrive at a final property settlement, it is generally assumed by members of the general public that is that, it's final and everyone can move on. However, your final settlement may not stop ex-spouses from making a  future claim on your estate. Unfortunately, this was the case for Dr. Lodin and others alike. An appeal case has recently been decided in the NSW Court of Appeal on this matter.

 

Provision claims from ex-partners

In 2017, the ex-wife of Dr. Lodin, whom he had been married for 18 months and separated for more than 25 years, was awarded a portion of her ex-spouse’s estate (worth $750, 000). The full estate had been solely left for their daughter upon his death.[1] The conclusion by the judge stated that the ex-wife had been left with 'inadequate provision for her proper maintenance and advancement in life’, and in some cases, ex-spouses do have a ‘provision’ for a claim under the Succession Act 2006 which covers family provision claims.[2]

 

The Lodin case was overturned by the NSW Court of Appeal as the courts decided that the evidence did not satisfy the provision claim to Dr. Lodin’s estate. The appeal has also brought to light the ex-wife’s behaviour post-separation, which included threatening letters and comments to the deceased. On top of this, it was found that Dr. Lodin had provided for their daughter’s maintenance over the years post separation and gave ‘additional financial support over and above his legal responsibilities’,[3] both findings weakened the ex- wife’s claim seeking provision from her ex-spouse’s estate. It goes without saying that it is important to be aware of your post-separation behaviour as it can affect you in the long run, even after your passing.

 

However, before you breathe a sigh of relief, the case’s comments re-emphasised that the resolution by final orders of the Family Court for one's separation 'does not necessarily constitute a fatal barrier’ to the provision claim from an ex-spouse.[4]

 

What can I do to prevent this?

The most important action to take is to have an up-to-date will that has clear and explicit instructions regarding your estate/possessions after your passing.

 

We are happy to help you with any services regarding your will, whether it is having one written, reviewed, or updated.

 

Please call us at Voice Lawyers on (02) 92318602 or voice@voicelawyers.com to make an appointment.

 

Voice Lawyers have offices in Sydney CBD and Macquarie Park.

 

 

 

 

 

[1] Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10.

 

[2] Succession Act 2006 (NSW) s 57(1)(d).

 

[3] Lodin v Lodin [2017] NSWCA 327.

 

[4] Ibid.

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