Last updated 21 November 2016
Before an agreement about a property settlement is reached, an injunction may be obtained (if the court thinks it is necessary) to freeze bank accounts, to prevent furniture and other moveables being removed, to prevent property (e.g. the matrimonial home) from being sold or, where companies or trusts are involved, to prevent a party from retiring from office or entering transactions to reduce their assets.
Injunctions will usually be granted to restrain a spouse from dealing with certain assets if:
- the party can establish they have a prima facie case (i.e. they have an arguable claim to a property settlement)
- on a balance of convenience, the party claiming the injunction will suffer greater harm if the injunction is not granted than the other party will if the injunction is granted
- the assets represent a substantial portion of the worth of the parties
- in the absence of an injunction, the innocent spouse would be prejudiced and unable to obtain their entitlement to property from the balance of the assets
- there is a risk of disposal or loss of the property in order to defeat a property settlement claim or judgment.
After separation, parties to a marriage should also give consideration to a number of other matters, particularly prior to a property settlement being effected. These include:
- whether the joint tenancy in any asset (e.g. the former matrimonial home) should be severed to convert the ownership to tenants in common
- making a new will, particularly if their former partner is the executor or major beneficiary of their estate
- the nomination of beneficiaries under life insurance policies or superannuation funds to ensure that, in the event of that party’s death, the proceeds of those policies are paid to their intended beneficiary
- the operation of any joint accounts (including mortgage accounts, particularly if they have a redraw facility), including a consideration of whether any joint accounts should be closed or whether a joint signatory requirement should be placed on the account.
It is important for separating couples to consider these issues after separation, particularly to cover the circumstance of an unexpected death of either party. Failure to do so could be significant if such an event occurred.
These matters apply equally to de facto couples.
Setting aside transactions
In some circumstances, the court may make orders setting aside transactions that have already been entered into by a spouse who is trying to defeat possible claims by the other spouse to property. For example, if a husband transferred property to his new de facto wife, to try to stop his former wife obtaining a share of it, that transfer might be set aside by the court (s 106B Family Law Act 1975 (Cth)).
The family home
In the absence of a court order to the contrary (e.g. a protection order issued pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)), the right to enter and occupy a matrimonial home rests with the person or people having title to the property. If the family home is registered in joint names, both parties have the right to enter the property. In such a case, a husband cannot force his wife to leave or stay out of the former family home and vice versa.
If the home is registered in the name of one party, they may have the right to refuse to allow the other party to enter or occupy the home. However, if this happened, the excluded spouse could seek an order from the family law courts to protect their situation. Such an order, which may be an injunction or an order altering property interests, may grant the applicant the exclusive right to occupy the matrimonial home.