Do you want to know how to protect your inheritance from your spouse Australia? You’re in the right place!
Inheriting assets or wealth from a loved one can be a bittersweet experience. Still, it also raises important considerations, especially when you have concerns about protecting your inheritance from your spouse in Australia.
These are the steps on how to protect your inheritance from your spouse Australia:
1. Understand the Legal Framework.
The Family Law Act 1975 (FLA) governs the principles and processes for property settlements during divorce or separation in Australia. The Act sets out the general principles that the court considers when deciding property settlement cases.
The first step on how to protect your inheritance from your spouse Australia is to understand the FLA. The Act outlines the rules and principles as to married couples or those who are in a de facto relationship.
These principles include:
- identifying and valuing the property and asset pool, liabilities, and financial resource of the parties;
- considering the financial contribution made by each party;
- assessing the future needs of both parties; and
- determining whether the proposed final property settlement is just and equitable.
However, there is no formula that one can use to divide property and finances, and the decision is made after all the evidence is heard. The judicial officer decides what is just and equitable based on the unique facts of the case.
2. Secure a Financial Agreement.
The second step on how to protect your inheritance from your spouse Australia is to secure a financial agreement.
A financial agreement under the Family Law Act 1975 is a legally binding document that sets out the financial arrangements between two parties in the event of separation or divorce. These agreements can be entered into before, during, or after a marriage or de facto relationship.
There are different types of financial agreements, including:
- prenuptial agreements,
- post-nuptial agreements, and
- separation agreements.
Here are some of our blog articles that discuss financial agreements in detail:
- Other Provisions About Financial Agreements
- Family Law Orders and Financial Agreements
- FLA Provisions on Financial Agreements
Key Aspects of Financial Agreements Under the FLA
1. Binding Financial Agreement. A binding financial agreement is a legally enforceable document that can prevent either party from making a claim on the other’s property pool or assets in the event of separation or divorce.
2. Requirements for Validity. To be a valid binding financial agreement, the parties must satisfy the following requirements:
- The agreement must be in writing and signed by all parties involved.
- Each party must receive independent legal advice from a qualified lawyer about the effect of the agreement on their rights and the advantages and disadvantages of entering into the agreement.
- The agreement must not be entered into under duress, fraud, or undue influence.
- The agreement must specify the relevant provisions of the Family Law Act that the parties seek to exclude or modify.
- The agreement must be fair and reasonable at the time it was made.
3. Court’s Power to Set Aside a Financial Agreement. The court has the power to set aside financial agreements in certain circumstances, as set out in sections 90K (for Financial Agreements about marriages) and 90UM (for Financial Agreements about de facto relationships) of the Family Law Act 1975.
5. Entering into a Financial Agreement. Parties can enter into a financial agreement before the de facto relationship(section 90UB), during the de facto relationship (section 90UC), or after the de facto relationship (section 90UD) of the Family Law Act 1975. It is mandatory to get independent legal advice before entering into a financial agreement.
To ensure that a financial agreement is valid and enforceable, it is crucial to consult with a qualified family lawyer who can provide guidance on the specific requirements and circumstances of the case.
6. Maintain a Separate Bank Account.
Maintaining a separate bank account specifically for your inheritance funds is advisable to protect your inheritance from your spouse in Australia. This is the third step on how to protect your inheritance from your spouse Australia. This can help prevent co-mingling of funds and provide a clear distinction between inherited assets, joint marital assets, and even a protected asset.
By avoiding depositing joint funds into this account and resisting adding your spouse’s name to any inherited property titles or accounts, you can reduce the risk of your inheritance being considered joint marital property in the event of a separation or divorce.
Generally, inheritance is treated as the separate property of the person who received them in Australia. However, if the inheritance is commingled with joint assets or used to acquire joint assets, such as a property, it may become part of the marital property and subject to division in the event of a divorce.
7. Establish Open Communication.
The simplest answer to the question “how to protect your inheritance from your spouse Australia” is to establish open communication with your other half.
Discussing the matter openly with your spouse and reaching an amicable agreement about dividing your assets is a recommended approach to protect your inheritance from your spouse in Australia.
By having an open and honest conversation, you can establish a mutual understanding of each other’s expectations and concerns, which can help prevent misunderstandings and disputes in the future.
If you and your spouse can reach an agreement, it’s advisable to formalise it by applying for consent orders through the Family Court or entering into a Binding Financial Agreement. This can help ensure that the agreement is legally binding and enforceable, and can provide clarity and certainty for both parties.
Seek Legal Advice From a Family Lawyer
Expert legal advise from a qualified family lawyer will serve as a guide on how to protect your inheritance from your spouse Australia.
Protecting your inheritance from your spouse in Australia requires proactive planning and an understanding of family law. By familiarising yourself with the legal framework, considering a financial agreement, maintaining a separate account, and keeping meticulous records, you can safeguard your inheritance in the unfortunate event of a relationship breakdown.
JB Solicitors’ competent family lawyers answer your question on how to protect your inheritance from your spouse Australia. We can also provide advice regarding any family law matter to ensure the protection of your interests within the bounds of law.
Contact us today for all your family law matters such as divorce settlement or inheritance disputes with family members. You can also reach out to us for all other legal matters.
