Do not wait to do property settlement after separation
This could have been titled: “Don’t wait to die before divorcing” or “How this couple turned divorce into a dying art.” It’s a story about Mr & Mrs Scott that we can learn from them.
Mr and Mrs Scott were 91 (Mr) and 83 (Ms) by the time they got to Court. They had been married 32 years, but separated for 30!!!
They never divorced. They never had a property settlement.
At separation, Ms S moved out.
Tried to Divorce
Back in 1985, Mrs S had tried to get a divorce, while she was separated from Mr S, but living together under 1 roof. Mr S disputed separation and the divorce never occurred.
Early in the relationship, they purchased land, this was there at the end, albeit with a house on it.
They paid off a mortgage. Other property was bought and sold during the relationship.
For 32 years the couple worked together to acquire, conserve and improve a property which was their home. That was during the relationship.
Separation
Then they separated.
For most of the first 8 years of separation, they both continued to use the property. This tapered off and for the 14 years before going into aged care, Mr S had the sole use of the property.
The house was registered solely in Mr S’s name. What did he care if there was no settlement.
Trying to Get Property Settlement
Mrs S kept asking for a share of the property and Mr S’s comments suggested he recognised her claim. I think this is code for: “I acknowledge that you say you have a claim”, because they never finalised a settlement. They even went to mediation, where they had an ‘in principal’ agreement. Nothing which was enforceable or led to the sale of the house and the division of proceeds.
Mr S made his position clear and took the position that she didn’t deserve it.
Husband tries to sell House
Mr S was going to have to move out of the house and into aged care. He needed $235,000 deposit for his aged accommodation and needed the house sold to get enough funds. So, in 2014, he listed it for sale.
Fearing he wasn’t going to share the proceeds, Mrs S slapped a caveat on the property and finally sued for property settlement.
The court listened and said they generally made good witnesses even if their recollection was a little rusty. The wife’s better than the husband’s. They listened because they determined that Mrs S was entitled to an order, in legalese “satisfied that it was just and equitable to make an order altering the parties’ interests in the property.”
The Court decided that the house in question should be sold and the nett proceeds divided equally and that they each retain the rest of whatever property they each had.
Lessons
The big kicker here is that there may have been more to divide if they’d done everything closer to the time of separation.
If you are separated and want to protect your assets, or need a share of them to move onto your single life with some independence. And so that the last relationship really is over, and you are separating get some advice, about when, how and what of divorce, separation and other family law matters.
Don’t be like Mr & Mrs Scott.
Had they done their divorce and property settlement around the time of separation, Mr S would have had more time to enjoy beer and bacon, instead of 30 years where Mrs S kept turning up at the house to get her share. Bacon and beer taste much better when you’re left in peace to enjoy them.
Don’t wait until it is too late.
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For anyone interested in the whole case, you will find it here: Scott & Scott [2016] FCCA 1659