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Big win or big loss? Post-separation lottery wins and other windfalls

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Big win or big loss? Post-separation lottery wins and other windfalls

Imagine this – you and your husband, wife or partner have separated. You haven’t obtained a Court Order specifying who keeps what because you simply don’t think you need one, or, maybe you just haven’t gotten around to it yet. You check your Oz Lotto ticket to find you’ve won – big. Or, perhaps a loved one has passed on and left you an inheritance in their Will. You’re thinking “Surely my ex doesn’t have a right to this money…. Do they?”

The answer depends – in some cases they will, and in others they won’t.

Usually, all assets and liabilities in each of the parties’ names (whether held individually, jointly, through a company etc.) are pooled together. This is the “net asset pool” of the parties and is available for division between them.

In the past, post-separation windfalls, including lottery wins and inheritances, were generally considered as part of the pool of assets available for division and taken into account when finalising property matters.

However, this is not always the case. In the case of Eufrosin & Eufrosin [2014] FamCAFC 191, a husband and wife separated and, 6 months later, the wife won $6 million dollars in the lottery. The parties had been married for about 20 years and had adult children. The $6 million was not considered property available for division amongst the parties. Instead, it was effectively quarantined from the net asset pool. In so deciding, the Court held that the issues is not determined by simply looking to the source of the funds used to purchase the winning ticket – for example, whether it was brought using one party’s money only or joint funds. Instead, it is the nature of the relationship between the parties at the time the ticket was purchased which determines whether or not the winnings would be available for division between them. In that case, it was irrelevant what money the wife used to purchase the ticket, as she had purchased it for her benefit alone, and not for their joint benefit, as a married couple may do.

Notably, if the lottery win occurred while the parties were still in a relationship, the $6 million would generally have formed part of the asset pool if they were to later separate. Again, timing is key.  So the question comes about, are we in a relationship, or a financial dependancy?  The answer may not be as straight forward as you think.

If you’ve received a windfall at any stage of your relationship and would like to ensure that money is protected or fairly distributed should you one day separation from your current partner, you may wish to enter into a Financial Agreement (or “pre-nup”) with your partner.

If you’ve recently hit the jackpot or received an inheritance or other windfall and would like further information about protecting that money and/or who may be entitled to a chunk of it, talk with one of our Team members on 9386 5200, or email us at This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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Tuesday, 26 May 2020

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