Managing Relationships (from a Legal Point of View) Part 2 by Peter Nevile

Succession Issues for singles
(Including those with either anticipated or newly acquired single status)

If you are convinced that you are not going to die, or you don't intend to die in the foreseeable future, then read no further.

If, on the other hand, you have accepted your mortality, and know it is only a question of when, not if, you will pass on to another, hopefully better place, I would like to acquaint you with a few issues relating to the need for a Will.

Wills are not only for those in fear of an imminent demise or those in wedded bliss – or otherwise. They are equally important for singles, and particularly important for those who have just exited a relationship, or are about to contemplate a new relationship, or even serial relationships.

In 2007 in The Weekend Australia Magazine, Victoria Laurie wrote an excellent article titled 'Estate of Play'. In it she suggests that almost half of the eligible adults will fail to make a Will, or do not possess a current Will.

She also mentions, tongue in cheek but nevertheless a sound piece of advice: "If you have led a complicated life, simplify it with your death or a Will".

Many people are aware that an existing Will becomes void on marriage. However, few are aware that a Will made in marriage is not automatically revoked on separation or divorce.

As you can imagine, an untimely death, which incidentally most deaths are in one way or another, can have unforeseen, unintended, far-reaching and, in many cases, unwanted consequences.

Our laws include rules for Intestacy (dying without a Will) which provide a set formula for the distribution of your estate. However this may, and probably will, produce a distribution of your estate which could be at odds with your intentions, especially if you have recently come out of a relationship.

As Victoria Laurie points out, the issues today are further complicated with multiple marriages, de facto partnerships, same sex couples and offspring arising from one or more unions, including from time to time ex-nuptial children whose presence often comes to light at the most inconvenient and unexpected times, but almost certainly when the prospect of a distribution or inheritance is at hand.

Asset Protection on a relationship breakdown………or how not to reduce your wealth

Very few people find the accumulation of wealth an easy task and it comes as no surprise that most of us wish to preserve it as best we can.

In this article I would like to raise a number of issues which may assist in the protection of your wealth and some tips on how you might minimise the risk of its loss or failing that just scaring the living daylights out of you with some observations on how relationship breakdowns can contribute to a potential loss of your wealth.

Like most people who have reached middle age or more I can claim some experience although I would hesitate to claim any expertise in relationships.

I must emphasize that I do not practice as a family lawyer and therefore when it comes to legal issues arising from a relationship or matrimonial breakdown expert advice ought to be sought in this area.

If you need assistance with a referral to a pragmatic proponent of the art don't hesitate to contact me.

What I can say is that the Family Law Court appears to have exceedingly wide powers to order what in its opinion (which may not coincide with yours) is a fair and equitable distribution of family wealth based upon the needs and to a lesser extent the contribution of the parties to that relationship.

Those powers range across asset protection structures including superannuation, trusts, companies, joint ventures and other structures which were previously used with varying degrees of success to hide or protect assets from the other spouse or partner.

I think you can safely assume these days that if the relationship breaks down you can generally look forward to a division and thereby reduction in your current joint assets. It follows that in these circumstances the risk and loss minimisation is very much in your hands.

We have all heard the words "I can't afford to get divorced". As a result so many relationships continue on the basis that Tina Turner immortalised in that very powerful song "What's love got to do etc etc"….. when the hip pocket is at significant risk.

The reality is in many cases I've seen over the years that there are clients who are either happily married, happily single or unhappily surviving in both positions, who have accumulated considerable material wealth and assets through skill, hard work & modicum of good luck or even by marriage although not necessarily in that order.

Frequently they then fail to take even basic precautions regarding the protection of those assets and manage to deplete their material wealth, generally at a much faster rate than its accumulation.

Let me provide some food for thought by outlining a number of examples which may resonate with you. Speaking from a male perspective I have seen sensible professional and business people exit a relationship only to have their heads very quickly turned by younger and firmer flesh.

It is not uncommon to see large amounts of money and gifts lavished on the new trophy partner. In many cases she or he seems to posses an admirable capacity to assist in the rapid diminution of wealth previously so painstakingly accumulated.

These events are frequently justified on the basis of a new found love, lust or a combination of both and indeed no expense ought be spared in the successful pursuit or either or both.

It occurs to me somewhat cynically perhaps that attraction does seem to increase proportionately with the presence of a large bank balance, although not always.

Peter's law firm, Nevile & Co, offer a brief initial consultation at no charge to clients of Entre Nous to discuss any of the issues raised in this or subsequent articles and also matters relating to business commercial matters, property and intellectual property. He may be contacted on 9664 4700 or nevileco@nevile.com.au


Nevile & Co. Solicitors
Level 11, 100 Collins Street
Melbourne VIC 3000
(03) 9664-4703

Keywords: Succession Issues for singles, singles, wedded bliss, relationship, managing relationships