‘Til Death Do Us Part – The Importance Of Tying Up All Loose Ends After Separation

There are two important legal steps when married couples separate:

  • Separation and a property settlement
  • Divorce

All married couples should know that until a divorce is finalised, the law presumes that your married spouse is your next of kin. If all loose ends are not tied up, things can get messy as demonstrated by the below situations.
 

No binding property settlement, no divorce, no will

Mary and Mark have separated but have reached a verbal agreement as to Mary getting 70% of the assets. Mary dies unexpectedly. What happens to the property settlement?

Answer: As a verbal agreement is not binding and Mary and Mark are not divorced, Mark would take the property and the verbal agreement may not be recognised.
 

Property settlement, no divorce, no will

Same fact situation as above, but the couple have entered into a binding agreement and property has already been transferred to Mark.

Answer: As the divorce has not been finalised, Mark is still considered to be the next of kin. As Mary died without a will, Mark would be appointed the administrator and would receive the property back from Mary’s estate through the laws of intestacy.

It is therefore very important to tie up all loose ends when you separate from your spouse to ensure that an unexpected death will not cause more havoc than it should.

This includes finalising the property settlement by way of consent orders with the court or a binding financial agreement, applying for a divorce and making a will as soon as you separate.

If you are looking to tie up one of these loose ends, please do not hesitate to contact me.

Chris Henderson

Chris Henderson

At Phillips & Wilkins, Chris practices in the areas of Property Law, Conveyancing and Family Law. Chris has grown up in the Northern Suburbs and continues to be a part of the local community as being a member of the Old Paradians Amateur Football Club and the Mill Park Cricket Club.