Can My Ex Claim Money After Divorce?

To determine if your ex can claim money after divorce, it is important to first understand how property settlements differ from divorce proceedings.

Property Settlement vs Divorce

Property settlement and divorce are not the same; however, both can occur following the breakdown of a marriage.

Property settlement by Court Orders may occur before or after a divorce.

The Family Law Act imposes limitations on parties needing orders for property division. The limitation is 1 year from the date of a divorce order taking effect or 2 years from the date of separation (de facto couples).

Alternatively, property settlement can be reached by agreement without Court involvement by the parties entering into a Financial Agreement, which is commonly known as a Binding Financial Agreement (‘BFA’), either during a marriage or after a divorce order is made.

If you and your ex informally agree to a property settlement that was not formalised by way of Court Orders or a valid BFA, either party may make a claim against the other for property settlement.

Importantly, a BFA may be set aside in certain circumstances including, but not limited to:

The BFA was obtained by fraud;
A material matter was not disclosed in the BFA;
There has been a material change in circumstances since the BFA was entered into relating to the care, welfare and development of a child of the marriage;
The BFA is void or unenforceable; or
A party has engaged in ‘unconscionable’ or deceptive conduct with the BFA.

Therefore, if you and your ex divorced less than 12 months ago but have not finalised property settlement by way of Court Orders, or if you and your ex entered into a BFA but it has been set aside for a valid reason, it may be possible for you or your ex to make a claim against the other for property settlement.

Claiming Money after Divorce

In short, you or your ex may claim money (or property) after divorce from the other if:

1. You did not finalise the property settlement before the time limits

If you and your ex did not finalise outstanding property matters before the time limits (1 year from the date of a divorce order or 2 years from the date of separation) by obtaining Court Orders or a BFA, either you or your ex may apply to the Court for property orders.

2. Your agreement about property settlement was not formalised by Court Orders or a BFA

If only an informal agreement was reached concerning the property settlement (for example, an oral agreement) either party may apply to the Court for property settlement.

3. You entered into a BFA but believe there are reasons to have it set aside

If you believe a BFA should be set aside, you should seek legal advice.

If successful in satisfying the Court to set aside a BFA, it is likely the Court will also permit an application for property settlement to be made ‘out of time’.

4. You and your ex obtained property orders by consent but circumstances exist which allow a party to appeal those orders

For example, if there was fraud, mistake, fresh evidence, or the absence of jurisdiction which has led to a ‘miscarriage of justice’, it may be possible to appeal the Court Orders and make a fresh application for property settlement, even though it may be out of time.