Achieving Settlement in Circumstances of Overwhelming Opposition

15/10/2018

Watson & Watson recently resolved a complicated property matter.  The matter was settled at Mediation following a long and hard fought period of litigation between separated spouses.

Watson & Watson acted on behalf of the wife.  The husband had virtually all the assets of the relationship registered in his sole name.  He had vastly superior financial capacity to conduct the case.  His lawyers asserted that the wife should not receive anything.  The husband had during the marriage controlled the assets and managed the finances of the marriage.  He had excluded the wife from financial affairs.

When the wife first approached Watson & Watson the husband and wife were residing overseas and the wife had returned to Australia at which time she contacted Watson & Watson seeking assistance in relation to property division/financial settlement with the husband.

Firstly we considered the wife’s position and whether it was favourable to commence proceedings in Australia or to have them commenced and determined overseas.  We advised that it would be in her interest to commence proceedings in Australia.  It was critical that she commenced proceedings in Australia before the husband commenced proceeding overseas.

If the wife had not commenced proceedings in Australia at that time the outcome achieved would not have been as favourable to her.

The wife was at a disadvantage at the commencement of the proceedings as she had few assets and had to fund the proceedings from her earnings.  She did not have an endless source of money to use to fight her husband.  The husband had access to significant funds that helped him pay his lawyers costs and instructed them to make matters as difficult as possible for the wife.  The husband did not want to pay anything to the wife and was prepared to incur costs to obtain this outcome.

The husband and wife commenced their relationship overseas and the husband brought into the relationship significant assets.

The relationship was one where the parties bought and sold property in Australia and purchased property overseas.  The husband had returned to Australia following separation and the wife resided and worked outside of Australia.  The husband retired upon his return to Australia.  At the time of separation, the respective property holdings favoured the husband.  All but two of the many properties owned were in the husband’s name only.

The wife commenced proceedings in the Federal Circuit Court of Australia for property division.  The husband defended the proceedings vigorously and asserted that the wife should only retain the property overseas that was registered in her sole name and not receive any other adjustments.  The husband’s position therefore would have resulted in a 90% / 10% split of the assets in his favour.

Watson & Watson acted on behalf of the wife and pursued the matter.  The Court ordered that there be a Mediation prior to the final hearing.  The final hearing had been set down for two days.  The costs of the hearing including the Barrister’s fees would have been very significant and could be afforded by the husband but not by the wife.

By way of preparation of the case and before Mediation, Watson & Watson carried out the following:

  • Considered which Court (either in Australia or overseas) would result in the best outcome for the wife.
  • Took swift action to commence proceedings in Australia so as to enliven the jurisdiction of the Australian courts. 
  • Preparation of a precise chronology of contributions, acquisition and disposal of assets. 
  • Obtaining financial disclosure from the husband so as to properly identify the whole of the asset pool. 
  • Provided financial disclosure and reviewed the husband’s financial disclosure
  • Consider possible outcomes and offers to settle. 
  • Negotiation of settlement at Mediation.  

The decision by the wife to commence proceedings in Australia at the appropriate time facilitated a successful outcome which resulted in the wife retaining all properties in her sole name and receiving a very substantial cash payment from the husband.  The wife received a fair and equitable result.

If the husband had commenced proceedings overseas our client’s position would have been adversely affected and the settlement achieved would not have been attainable.

If you are entering into negotiations for property division/financial settlement and are exposed to a potentially unfair settlement/division of assets due to the nature of the acquisition of assets and/or the location of assets and/or the residency of the parties, please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your concerns.  Timing is an important factor to consider when it comes to property division/financial settlement and in some instances, is crucial to a successful outcome.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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