Act fast to protect your super when divorcing

by Peter Magee on June 19, 2012

Peter Magee

If you are due to receive a lump sum property settlement, what can you do to protect that asset (cash, a property or superannuation) from being spent before you receive it?

The Canberra Times reported on 29 March 2012 in an article titled ‘Super spend lands husband in jail’, on a Federal Magistrates Court case in NSW. In the case, a husband was jailed for nine months for spending superannuation he had been ordered to transfer it to his ex-wife. The husband wasted $100,000 mainly on prostitutes and gambling. As that was one of the only assets of the couple, the wife will never recover the property settlement due to her. The court found that the husband should therefore be punished by a jail term.

If there is any risk that your ex-spouse may waste assets before a court has made property orders, what are your options?

  • You can seek urgent interim restraining orders which freeze bank accounts until order of the court or written joint instructions by both parties.
  •  You can seek flagging orders in relation to superannuation, which means that the trustee of a superannuation fund is on alert that superannuation should not be paid out to an account holder pending a flag lifting order or you can put a caveat on a property, which prevents the property from being sold until the caveat is lifted by you (there are exceptions to this general rule)
  • You can seek to join a third party to your application, so that the third party is bound by orders not to do something (for example, you could obtain an order restraining a company from paying a benefit to your ex-spouse until the court has considered the risk of assets disappearing).

In cases of extreme urgency, you can even apply to the court to have orders made without your ex-spouse knowing about your application and any orders made, until after the orders are given effect. Such orders are known as ‘ex parte’ orders.

These are just some of the legal steps you can take through your solicitor to prevent assets being wasted before a court has made final property orders, to ensure you get your fair share of assets.

If you have any concerns at all, do not hesitate to contact one of our Family Lawyers today, for a no-obligation first conference to discuss your particular case. There is no charge if you do not proceed.

The consequences of not seeing a lawyer may be very serious, and taking the time to see a lawyer early can save you a lot of grief.

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