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Answering your family law questions part #1

Welcome to the first in a series where I respond to questions about family law posted on the r/auslegal subreddit. If you're not familiar with Reddit, it's a social media platform that allows users to post and comment on various topics, including legal issues. The r/auslegal subreddit is a forum for Australians to ask questions about the law and get answers from legal professionals and other knowledgeable users.

It is important to keep in mind that Reddit (or this blog) is not the same as a formal legal consultation and that the information provided should not be taken as legal advice. This is purely for general information and entertainment purposes.

Let's get started!

u/stayugly 1 asks:

"Long story short, found out my husband has been cheating on me/other horrible things. He doesn’t think I will divorce him. I am worried if I do, he will try and take half of the house (which he hasn’t paid a cent for - it’s currently in my name. He has been out of work for a long time).

If I move the property to my child’s name, would this remove him from rights to the property in the event of a divorce?

First time post on this subreddit, apologies if I have missed any crucial details, I appreciate any ideas."

This is a question that seems to come up often and hiding assets is not as easy as people seem to think.

In Australia, the Family Law Act 1975 (the Act) applies to the division of property and financial resources upon divorce or separation. Section 106 of the Act allows the court to make orders for the sale, transfer, or settlement of property as part of a property settlement.

If one party transfers property in an attempt to shield it from the divorce settlement, the other party may challenge the transfer as a fraudulent conveyance. Under section 121 of the Act, the court has the power to set aside transactions that are entered into with the intention of defeating the claims of a spouse or de facto partner. This includes transfers of property that are made with the intent to defraud, hinder, or delay the other party's claim to a share of the property.

If the court determines that a transfer of property was a fraudulent conveyance, it may set aside the transfer and treat the property as if it had not been transferred. This means that the property would still be considered part of the marital or de facto property and subject to division in the property settlement.

It is generally best to avoid transferring property in an attempt to shield it from the divorce settlement and to seek the advice of a family lawyer if you are facing a divorce and have concerns about the division of property.

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