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The law doesn't care if you're separated but not yet divorced... How your ex can end up with your money after you're long gone..

The law doesn't care if you're separated but not yet divorced... How your ex can end up with your money after you're long gone..

A relationship breakdown is one of the most traumatic things you’ll ever have to deal with in your life. Life as you know it is tossed completely upside down, and not only do you have to grieve the loss of the relationship, but you probably have to move, open new bank accounts, learn where everything is in a new supermarket, and sometimes even stop seeing some of your friends because your former partner got them in the split. While you’re sorting through 3 years’ worth of bank statements and trying to get your ex to agree that the kids can stay with you until 2.00pm on Christmas Day instead of 1.00pm, it might not feel like there’s much time to get your head around anything else.

In amongst it all, you probably don’t care about, or even think about, updating your Will.

Because really, why would you?! Nothing’s going to happen to you, right?

If you do have a Will, chances are you signed it at a time when you wanted your former partner to get everything. Now that you’re standing in Court fighting over who gets the yoga mats, you probably don’t feel the same way anymore. If something happened to you before you were divorced, you would probably rather leave all your money to the best friend who cooked you meals and took you to the pub to lament the breakup. Or maybe you’d prefer to make sure your parents, who are helping you fund your stressful legal battle, benefit.

If you do end up getting divorced, then the law in WA is that your divorce will revoke an otherwise valid Will. Which is nice and handy if you want to make sure that your ex doesn’t get their hands on your Estate if something happened to you, but there are rules about how long you need to be separated before you can bring the marriage to a legal end and while we don’t like to think about it, anything could happen in the meantime.

Even if your Will doesn’t leave the bulk of your Estate to your former partner, it may well appoint that person as the Executor of your Estate, or express the wish that they act as the guardian of your children from a another previous relationship. Your change in circumstances might want you to re-think trusting your former partner with these hefty responsibilities.

“But I don’t even have a Will, so what does it matter?”, I hear you say. If you don’t have a Will, in WA there’s a handy little piece of legislation (called the Administration Act 1903) that sets out who gets a slice of the pie that is your Estate when you die, and how much they get. This piece of black and white legislation doesn’t care if you’re separated, but not yet divorced. Your spouse could end up getting most (or in certain circumstances, all) of your Estate if you haven’t recorded your intentions in a valid Will.

So while it’s not the first thing, or the most exciting thing, to think about when your relationship breaks down, turning your mind to the update of your Will is probably one of the most important things you can do for yourself, and your family.

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Wednesday, 22 September 2021

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