I have been married for several years but have recently separated from my spouse. We have finalised a property settlement, but are yet to get around to being officially divorced.. I don’t have a Will, does this mean my former spouse will still have access to my estate when I die?

The simple answer is yes. Whilst you may be separated, you are still legally married and have a legal ‘spouse’ in the eyes of the law. Under the Administration and Probate Act 1919 (SA) if a person dies without a Will, having a legal spouse and no children, then the partner would be entitled to the whole of the estate.  Alternatively if there were children, and the estate was worth over $100,000.00 then the legal spouse would receive the first $100,000.00 and anything over $100,000.00 will be divided equally between the legal spouse and the children of the deceased.

In a recent case, the Supreme Court of South Australia heard the case of a young couple who had been married and undergone a messy break-up. A property settlement was entered into and they began to move in separate directions. The wife had served divorce papers on the husband, but he hadn’t yet signed them.   Legally speaking, the divorce was never finalised. Approximately 15 months later the husband died in a tragic accident. The husband left no Will which resulted in the former spouse being entitled to the estate in its entirety.  This included a house and a significant superannuation benefit. The deceased’s grieving family were left with nothing.

Whilst the family of the deceased might, in certain circumstances, be entitled to make a claim for an interest in the estate under the Inheritance (Family Provision) Act 1972 (SA), the exercise would be costly and possibly detrimental to the family.  This could easily have been avoided, either by finalising the divorce or by having a Will in place.

In the matter described above, if the deceased had been divorced or had left a Will, then his estranged wife would have no claim or entitlement to the estate.

It is prudent to seek advice from a solicitor in the event of a relationship break down. A solicitor is best equipped to provide you with appropriate advice related to the effects and long term implications a previous relationship may have on your estate and how to best to structure your affairs in order to minimise any ex-partner from making a claim to your estate. For advice on Wills and Estate matter contact the dedicated and experienced team at Welden & Coluccio Lawyers.

Relationship breakdowns are frequently likened to a death. Certainly, like a death, there is a good degree of grieving involved, along with the more practical management of affairs. During what is nearly always an emotional time this can seem like an insurmountable challenge.

Property Settlement is an arrangement about how you and your ex-spouse or domestic partner distribute property. It should be noted that a Property settlement can occur after separation and before divorce, or after divorce.

Property includes things like a house, a car or money in the bank. Property can also include less obvious things like long service leave entitlements, superannuation, potential compensation claims and debts owed.

It is always best if the parties can come to a mutual agreement. However, before moving forward with this it is always advisable to obtain independent legal advice to accurately determine your entitlements.

Once an agreement is reached between the parties, you should obtain Consent orders which reflect what you have agreed to. The benefit of Court ordered consent orders is, if one of the parties does not abide by the agreement, you

can go to the Courts to have the agreement enforced.
If you and your ex-spouse cannot reach an agreement, you can make an application to the Family Court to determine your property settlement.

It is important to note that if you have been divorced, you only have 12 months from the date of your divorce becoming finalised to apply to the Family Law Courts for a property settlement.

For independent advice in relation to your entitlements following a relationship breakdown speak to one of the expert solicitors at Welden & Coluccio Lawyers.

I just love a clean slate.  I think it goes back to my primary school days when we trundled into school late January to collect our tidy bundles of new stationery, complete with perfectly sharpened HB pencils and crisp white interleaved notebooks.  I think it was the promise of new beginnings and of new opportunities that I relished.  Perhaps I was just pleasantly asphyxiated on the fragrance of all those freshly cut trees.

Happy New Year!  Of course, in the spirit of making the most of a clean slate, the New Year is the perfect time to reassess your current situation.  I am not just speaking of starting that clean-eating regime  (although you really should do this; bring on the detox). No, I am talking about a complete re-evaluation of your financial and legal affairs.

So where are you now, and, what is happening in your life?  Perhaps you are about to buy a new house or have sold an existing property?  You might have started a new relationship (lucky you)?  You may have even ended one?  Maybe you’ve just retired or are thinking about doing this in the next year?  Births, deaths, marriages, divorce, they all call for a careful re-evaluation of your finances which also requires a reassessment of how all these events are dealt with in your Will.

The New Year is the perfect time to review your wills and estate documents to ensure that they reflect your current (potentially altered) circumstances.  This year I ask you, as you box away your Christmas prezzies; to ask yourself some simple questions.   Is my Will still relevant? Would it still meet my needs should the unthinkable occur?  Better yet, if you still have not managed to get your Will drafted, I implore you to make 2017  the one that you nailed it.

Welden & Coluccio Lawyers; the Estate Specialists are happy to assist you with all your legal needs.  For more information or for a consultation please contact Jason Coluccio or Greg Welden on 7225 8703.