A partial property settlement is a distribution of assets or financial resources between separated parties in advance of final orders. It is commonly also referred to as an interim property settlement

Case scenario

Matt and Courtney separate after being together for 27 years. Matt works full time as a Marketing Director and earns $100,000 per annum. Courtney works casually as an administrative assistant, earning $20,000 per annum. They have two children together aged 12 and 7 years. The parties have assets which consists of:

A property in Port Melbourne $950,000 nett
Courtney’s Range Rover $30,000
Matt’s Savings $40,000
Courtney’s savings $1,000
Matt’s Toyota car $8500
Shares in Matt’s name $150,000

After separating, Matt moves out of the Port Melbourne home. The children live with their parents equally. Courtney needs some money as is struggling to meet living expenses and legal costs.

Can Courtney get access to $20,000?

The short answer is that she can – her entitlements in this case are way in excess of the amount that she is asking for so a Court can make an order for Matt to either pay her the funds from his bank account or to sell some shares to pay her $20,000.

This concept is an old legal concept first discussed in Strahan & Strahan (Interim property orders) [2009] FamCAFC 166 but summarised so well in the decision of Wenz & Archer [2008] FMCAfam 1119 in which the trial judge (Reithmuller FM as he then was) said:

“It cannot be the case that a party who has an irresistible claim to a substantial share of the property of the parties should be held out of that property whilst the matter is litigated, left to rely upon applications for exclusive occupation of the matrimonial home or spousal maintenance alone, particularly where the parties are asset rich but have relatively modest incomes (such as the present case). Nor could it be appropriate that a party should be denied the ability to liquidate assets when there are real needs for those resources, such as to meet debts which may result in the party being pursued by creditors, or the need for the party to make payments for the benefit of the children, or to take advantage of other financial opportunities”

If you are either Matt or Courtney you should contact an experienced family lawyer – contact our family law team for a no obligation discussion on where you stand.

David de Alwis

Partner, Family Law
Hope Earle Lawyers