4 May 2021, By Niki Schomberg of Hartley Family Law
Yes. But we do not recommend this in all circumstances because it can potentially blow up any goodwill between you and your ex-partner and make it more difficult to resolve your family law matter.
We have seen this scenario often; parties’ life savings are in their joint bank account and after separation one of the spouses transfers the money into their sole account. It can be a race to the finish line who transfers first.
Nothing can be done for the return of those funds short of an order from the family law courts, by which time the money may all be gone.
If the money has been spent, then unless you can prove your ex-partner spent it recklessly, negligently, or wantonly (which is a high threshold), the court won’t notionally add it back into the property pool.
If your ex spends the money to pay for theirs and your children’s reasonable living expenses (groceries, clothes, housing, etc), it will not be considered as a ‘negative contribution’ or add back to the property pool.
On the other hand, if the money were placed on black at the casino, there would be an argument for an add back.
So, when should I transfer funds from the joint bank account?
It is not a criminal offence, nor does it fall foul of the family law legislation, for you to transfer the balance of funds from joint bank accounts into your sole account after separation.
One caveat is not to transfer funds from company or trust accounts without first speaking to a family law specialist, as there may be legal and tax ramifications in those circumstances.
We generally advise clients that the circumstances in which it is most appropriate to take joint funds are:
- You have no other access to funds where your partner does, or your partner is withholding financial support from you.
If you have been the homemaker and do not have a job or sufficient income to meet your and your children’s needs, it may be that your only way to support yourself and your children is to withdraw funds from the joint bank account.
- There are significant funds in the joint account, and you are concerned your partner will deliberately deplete the property pool and accordingly, your entitlements to a property settlement.
So, what are my other options?
Some other options to consider are:
- Ask your bank to place joint signatures on the account. This will prevent both you and your partner from withdrawing funds without you both consenting.
While this will preserve the asset pool the downside is you will have no access to the funds without your partner’s agreement.
- Withdraw half of the funds in the account, or another proportion, and leave the rest for your ex-partner.
The level of conflict, amount of funds in joint accounts and your financial circumstances will determine the tactical approach in your matter.
If you do have significant funds in joint accounts, it is critical that you speak to a family lawyer urgently once you separate.
If you need any assistance in your property settlement matter, please feel free to contact our Niki Schomberg or one of our other experienced family lawyers.