You may have seen on Netflix recently, the new Dirty John series which covers the very messy divorce of Betty Broderick from Dan Broderick III.
One of the interesting aspects of the proceedings, and one which caused considerable anguish for Betty, was that Dan Broderick had allegedly been strategic in the lead up to separation. Dan allegedly took advantage of Californian Case Law that allowed him to claim back half of any debts incurred during the marriage, which he had paid following separation. Dan Broderick mortgaged multiple properties and purchased a house just prior to his asserted date of separation, in full knowledge that Betty would not be able to meet these mortgage repayments.
This meant that in final settlement, Betty had to “reimburse” Dan for various debts that he paid from the date that he first moved out, despite the fact that she was of the view that their marriage was still very much intact for some time after (rightly or wrongly). These ‘Epstein Credits’ reduced Betty’s settlement from $783,000 to $33,000.
Can this happen in Australia?
Whilst we do not have these exact payback provisions in Australian Case Law, ascertaining the date of separation is important and can have a bearing on the outcome of divorce and property settlement.
A divorce cannot be granted until you and your partner have been separated for 12 months. Once the Divorce Order has been granted, there is a time limit of 12 months for either party to commence proceedings. The length of the relationship will also have a bearing on the weighting of each of your contributions (deciding how much you will receive in settlement) and what will be taken account of as joint property for distribution.
How do the Courts decide on the date of Separation?
Separation is by its very nature difficult and often not clear cut.
Separation does not have to be agreed upon by both parties to a relationship. Simply one party needs to show that the marriage has irretrievably broken down and that there is no reasonable prospect of reconciliation. There are a number of factors which will evidence separation, which include whether the parties to a relationship, after the alleged separation date;-
- continued living together, shared a room or slept in separate rooms,
- engaged in a physical and/or sexual relationship;
- made further joint purchases or separated their financial affairs to an extent after the date of separation,
- held themselves out in public to be in a couple; and
- claimed single parent Centrelink benefits.
Agreeing upon a date of separation can be complicated and have repercussions in your property settlement. We at Tiyce & Lawyers are specialists in all matters concerning separation and understand that it is not easy.
If you would like to contact us for a confidential chat, please do not hesitate to call 02 9211 9976.