When a Relationship Breaks Down, Dividing Property Can Be Complex
Especially when one party receives an inheritance. Many people assume that an inheritance is automatically excluded from the asset pool in family law proceedings, but the reality is far more nuanced.
Is Inheritance Considered an Asset in a Divorce?
Whether an inheritance forms part of the divisible assets depends on several factors, including when it was received, whether it was used for joint expenses, and the broader contributions of each party. For a legal overview of property division in divorce, visit Federal Circuit and Family Court – Property and Divorce.
Protecting Your Inheritance in a Relationship Breakdown
Henson & Marlin (No 4) [2024] FedCFamC1F 713
Take, for example, the recent case of Henson & Marlin (No 4). Here, a wife sought a 40% share of the total net asset pool, arguing that her financial and non-financial contributions warranted a larger portion.
The court ultimately found it just and equitable to divide the property in her favour, considering her ongoing responsibilities as the primary caregiver for their children. This case highlights how financial separation during a relationship does not necessarily prevent a court from redistributing assets if fairness requires it.
Selwood & Selwood (No 2) [2024] FedCFamC1F 700
The court considered financial disparities between the parties. The mother had established a business that significantly increased in value after separation, and the father sought a larger share based on indirect contributions.
This principle extends to inheritances—if one party receives a large inheritance while the other has made significant sacrifices, the court may consider adjusting the property division accordingly.
Can My Spouse Claim My Inheritance in a Divorce?
Timing is critical when it comes to inheritances in family law. If an inheritance is received after separation, as in Fagan & Fagan (No 2), the recipient may have a stronger case for excluding it from the asset pool.
This shows that even post-separation inheritances can influence property settlements if one party would otherwise be left in a significantly weaker financial position.
What Happens to Inheritance After Separation in Australia?
If an inheritance is received during the relationship and used for joint expenses—such as paying off a mortgage, funding renovations, or covering living costs—it is more likely to be treated as part of the divisible asset pool. See Attorney-General’s guidance on property and financial matters.
Pao & Moy (No 2) [2024] FedCFamC1F 643
The case dealt with a husband misappropriating funds, resulting in a judgment debt. The wife argued that her inheritance should be excluded, but the court factored it into the settlement as some of it had been used for marital expenses.
How to Protect Inheritance in a Property Settlement
There are steps that can be taken to protect an inheritance. Setting up a financial agreement can help clarify whether an inheritance will be excluded from property division. For further detail, refer to Jameson Law’s Property Settlement page.
Keep the inheritance in a separate account
Avoid using it for joint expenses
Maintain clear records of its use
Final Thoughts
There is no one-size-fits-all answer to how an inheritance will be treated. Courts take a holistic approach, considering contributions and future needs. If you have received or expect to receive an inheritance, contact Jameson Law for guidance tailored to your situation.
What Sentence Could I Receive if Found Guilty?
If you are found guilty of a fraud offence then you could receive a range of sentences depending on the surrounding circumstances and severity of your actions. The sentencing judge could give you one of the following outcome;
Monetary fine;
Term of Imprisonment;
Community Corrections Order;
Home arrest/detention;
etc.
If you have been found guilty of committing an indictable offence then your sentence will likely be more punitive than if you are found guilty of a summary offence.
Your criminal lawyer should be able to advice which sentence you are likely to receive based on the facts and circumstances of your matter.
What is Reasonable Doubt?
Whenever an offence is brought before the court it is measured against whether the factors of the criminal offence can be proven beyond what would be considered reasonable by an ordinary person.
If you commit fraud offences there is usually a paper trail of where the fraud has been committed. This is either because someone obtains property belonging to another individual and there is a record, accounting records pick up payments or there is some sort of money involved. There may also be false document forgery involved which is identified through the examination of signatures by a third person.
To prove fraud offences beyond a reasonable doubt it must be proven that a reasonable person would consider that the defendant is guilty. Usually this is because an individual is obtaining a financial advantage and subsequently creating a financial disadvantage for another person.
Criminal lawyers spend considerable time appealing to either the Magistrate, Judge or jury on this point by attempting to convince that an ordinary person may have made the same choice in the same situation.
This is one of the core reasons why you must inform your criminal lawyer of any and all circumstances surrounding your matter. You never know what small piece of information could assist.
Identification Documents
Identification documents are often required to commit fraud and this is why it is so important to keep personal and private information safe. An identification document may be any of the following:
Birth certificate;
Driver’s Licence;
Passport;
Medicare Card;
Bank account details;
etc
To protect you from becoming a victim of fraud, many organisations such as banks, Centrelink, etc, have developed systems where you must provide multiple documents or multiple pieces of information for verification of your identity.
If you ever lose any of your documents, it is important to cancel them as soon as possible so that you cannot become a fraud victim. This is especially relevant for passports, driver’s licences and bank cards.
Providing false identification documents is a crime and it carries a maximum penalty which includes a term of imprisonment under the Crimes Act. The greater the deception the less likely a lenient sentence will be possible.
What is an Unacceptable Risk?
Serial fraud offenders may be considered an unacceptable risk to the ordinary person or wider society. An offence of fraud or fraudulent act is a breach of trust and depending on the level of offending creates a danger.
Some people engage in credit card fraud which can scam hundreds if not thousands of people in a short period of time. Other people may engage in money laundering which has society wide effects quickly. Identity offences can create irreparable damage to an individuals credit rating, ability to loan money or ability to live. The consequences can be severe.
More serious fraud charges such as those discussed above can carry maximum penalties of several years imprisonment. In many instances fraud charges within companies or organisations where there has been concealing of accounting records can damage both reputations and multiple individuals financial future.
Why Is Fraud Such A Serious Offence?
Fraud charges at their core are a breach of trust between individuals, organisations and the wider community. Providing a false document or obtaining a financial benefit is a criminal offence of fraud.
Financial advantage includes receipt of property or money that belongs to another individual or organisation. Fraud cases can be extremely tricky to prove if the paper trail is ambiguous, confusing or misleading. The more elaborate and misleading the crime the tougher sentence imposed.
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