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Family Law

Can I transfer my house to my children, to avoid dividing it with my spouse in proceedings?

By February 18, 2016No Comments

By Sharla Stevens

In the case of TABUSSI and TABUSSI (As Executor of the Estate of the late MR TABUSSI SENIOR (DECEASED) & ORS [2015] FCWA 108 (8 December 2015) the Husband transferred the title of a property to the names of his 2 adult children from his first marriage after he learnt that he was terminally ill. He did not want his wife to have the house.

The wife discovered the transfer and filed an Application in Court to set it aside but unfortunately the Husband died before he was served with the Wife’s Application. The case continued, with the Husband’s Executor stepping in to continue in his place.

In her Application the Wife sought that the house transfer be set aside.  That way it was in their pool of assets and impacted her inheritance from him.

The Judge made an Order to set aside the house transfer by the Husband on the basis that it had been made to try to defeat the wife’s claim.

Despite the fact that the parties were still together at the time the Husband transferred the property the Judge noted that it was reasonably foreseeable that the Wife would have commenced proceedings in Court once the transfer had been made, despite them still being together. This was based on a number of factors, including that the Wife had voiced mistrust towards the Husband previously and had even sought legal advice and believed that she had lodged a caveat on the property.  Their relationship sounds as though it was on the rocks.

The Wife also sought further Orders for a property settlement, notwithstanding the Husband’s death. The Judge agreed that it was still appropriate to make property settlement Orders and Ordered that there be an overall division of assets of 55% to the Wife and 45% to the Husband’s estate. The adjustment in the Wife’s favour was based on her future needs.

If you have any concerns about your partner or spouse transferring assets then we would advise that you seek legal advice immediately. If a transfer has already been made then it may be possible to apply for a Court Order to set aside the transfer.

This case is also important in that it highlights that an Application for property settlement Orders may continue on foot, and Orders may be made, notwithstanding that the other party may have died after the case started.

For further legal advice in relation to your entitlements please contact Cristina Huesch, our Accredited Specialist in family law, or one of our solicitors, Sharla Stevens or Angela Li here at Alliance Family Law on (02) 6223 2400.

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