Legal Hypothetical: Second bite at cherry after divorce


Second bite at cherry after divorce

PETER and Michelle separate after a 20 year relationship.

Twelve months later, a divorce order is granted.

Peter puts an offer to Michelle regarding the division of their property.

They both seek legal advice.

The parties ultimately settle on a 60/40 split in favour of Michelle.

Consent orders under the Family Law Act are drafted to finalise the arrangement.

Peter takes the opportunity to discuss his estate planning with a specialist.

The solicitor advises him that despite the finalisation of the property settlement under Commonwealth legislation, Michelle is still able to make a family provision claim against Peter’s estate upon his death.

Peter believes that he was generous in relation to the property settlement and is concerned that if Michelle also made a claim against his estate, the result would not be fair to his children.

Peter is advised that Michelle can only be prevented from making a claim if an order is made by the Supreme Court of New South Wales under State legislation.

Peter decides that due to the relatively high value of the assets involved in a property settlement, the costs of making the application are justified.

The solicitors draft a Deed of Release, with the effect that Michelle is precluded from making a claim against Peter’s estate, on the condition that the property settlement consent orders are made under the Family Law Act.

Affidavits detailing the settlement are filed in support of the application.

In determining the application, the Supreme Court considers whether, in the context of the property settlement, the release is to Michelle’s advantage and whether the release is “prudent”. The Court also considers whether the release is “fair and reasonable” and on the basis that Peter and Michelle each received independent legal advice, grants the application to approve the release of Michelle’s rights to make a claim against Peter’s estate.

Peter makes a new will, leaving the whole of his estate to his children, in the knowledge that Michelle cannot have a second bite at the cherry.

If YOU would like a particular issue addressed, please email me at [email protected] or call me on (02) 66 487 487.


By Manny WOOD, Solicitor

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