Separating from coercive controller of finances.
Are you in a marriage or de facto relationship where your spouse or de facto partner holds all the financial power and is exercising coercive control of you regarding the finances?
For example: restricting reasonable access to funds, monitoring expenditures, refusing to provide access to information about the finances, requiring you to fund expenses disproportionally, not reasonably contributing to expenses, making you financial dependent.
The law recognises that coercive control (including coercive control involving finances) is a form of family violence.
Coercive control over your finances can make separation daunting, particularly if you have little or no access to money or financial information.
How do you start again when you have nothing in your name?
Recently, Heather reached out to us with her story.
Heather’s Email
I have just separated from my husband of 13 years. Our children are adults.
My husband controlled all the finances. The home and other investments are in his name. He was the primary income earner and his earnings went into his bank account. He would give me an amount of money each week for household expenses. Beyond that, if I needed to buy something, I would need to ask for his credit card, and he reviewed all debits. I had no visibility of his financial affairs. I have no finances of my own. I am now on Centrelink.
My husband does not think I am entitled to anything.
So I am now separated with no assets and no access to money other than what Centrelink provides. I cannot afford legal costs.
Where do I start in order to obtain what I am entitled to? I hope you can help.
Regards
Heather
Don’t Delay Seeking Advice
For anyone in a coercively controlled relationship but not yet separated, the best course is to prepare early and speak with a lawyer well before separating. If separation has already occurred, as in Heather’s case, do not delay seeking advice.
Not only lawyers can be consulted for advice. Consider psychologists, family violence support workers, financial support workers, trusted and wise mentors.
Also, consider learning by accessing helpful resources including online.
Choosing the Right Lawyer
The lawyer you choose can significantly influence your outcomes and experience of the separation.
In your discussions with a prospective lawyer, ask:
- What is a likely fair outcome?
- What are the reasons that is a likely fair outcome?
- What are the steps needed to get to that fair outcome (and over what period of time)?
- What should I do/not do in the meantime?
- What is the lawyer’s experience and approach in these types of separations?
- How will my case be managed (including in working with me and in dealing with my ex’s lawyer)?
- What are the estimated costs?
Covering the Costs of Legal Action
Heather’s concern about affording legal costs is common.
Options that may (in some situations) be available include the following:
- Loan funding:for example, application to JustFund to cover your legal costs. Repayment is not required until after settlement. Learn more information about JustFund.
- Court orders for costs: requiring:
(i) your ex-spouse or ex de facto partner to pay your reasonable legal costs if in a financial position to do so; or
(ii) an asset(s) to be sold to fund your and your ex-spouse’s/de facto partner’s legal costs, with the balance of the proceeds to be held in trust; - funding assistance from family or friends;
- private lawyers who are prepared to represent you and wait for payment of legal costs out of the monies received under the processes in (a) or (b) above or out of the final resolution of the dispute
These options, if they are available, can ensure that financial disadvantage does not prevent access to justice.
If these options are not available then other possible avenues for assistance may include:
- lawyers who can represent you on a grant from Victorian Legal Aid if you are eligible; or
- free community legal centres
Financial Disclosure: A Legal Obligation
The law requires both parties to provide full and frank disclosure of their financial circumstances. That includes, for example but not only, disclosing:
- bank account statements
- mortgage statements
- appraisals or valuations of real estate
- tax returns, pay slips, business activity statements (BAS)
- superannuation balances
- records of share portfolios
- trust financial statements, business financial statements
Division of Net Assets
Whether the asset or liability is in one spouse’s/partner’s name or in the other spouse’s/partner’s name or in joint names does not affect the entitlements upon separation.
Concern about Dissipating Assets
If you are concerned that your ex-spouse or ex de facto partner may dissipate any asset or transfer it to a third party then raise this concern with your lawyer and seek advice.
Spousal/Partner Maintenance/Financial Support
Temporary financial support from your ex-spouse/de facto partner may be able to be claimed if you cannot meet your own living costs and your ex has the capacity to pay. This is separate and in addition to receiving:
- an appropriate share of the parties’ net assets; and
- child support
Child Support
You and your ex can self-manage child support payments or obtain an assessment through Services Australia which administers Australia’s Child Support Scheme. If you obtain a Services Australia assessment, Services Australia will calculate the amount based on parental incomes, care time, and the child’s age, and can also collect and transfer payments for you.
Negotiation v Commencing Court Proceedings
Settlement by way of negotiation between the parties’ lawyers is much preferred to resolving disputes in Court.
Negotiation can also include negotiation between the parties’ lawyers at a mediation facilitated by an independent mediator.
However, in cases of coercive financial control and refusal to negotiate reasonably, starting Court proceedings may be necessary.
Even when a Court proceeding is filed the parties’ lawyers can still negotiate in an attempt to resolve the dispute without the need for a contested trial. Also, the Court commonly directs the parties and their lawyers to attend dispute resolution (such as conciliation conference with an independent conciliator or mediation with an independent mediator) if safe and proportionate to do so. Conciliation and mediation can often resolve disputes without the need for a contested trial.
Possible Early Stage Court Orders
Court Orders can be sought at an early stage in the legal proceeding, without waiting for the conciliation, mediation or contested trial. Examples of early stage Court Orders which can be sought, where appropriate, include, orders for:
- financial disclosure of documents
- spousal/partner maintenance/support
- the other party to pay towards your legal costs
- selling an asset to help fund legal costs
- restricting dealing with assets
Centrelink
Check and seek advice as to whether you are receiving the payments to which you are entitled from Centrelink. For example (but not only) see the following links:
Conclusion
If you are experiencing coercive financial control by your spouse or de facto partner, you do have options. They include:
- seeking advice (the earlier the better) from a lawyer experienced in the area
- seeking advice and assistance from good other sources
- learning about coercive financial control, separation and financial skills
- in some circumstances assistance can be found to cover legal costs of separation
- during the separation process your former spouse/de facto partner has a legal duty to disclose relevant financial documents
- even if the assets are in the former spouse’s/de facto partner’s name that does not affect how much you are entitled to following separation
- if you are concerned that your former spouse/de facto partner may dissipate any asset or transfer it to a third party then raise this concern with your lawyer and seek advice.
- in addition to your entitlement to an appropriate part of the division of the net assets, seek advice as to whether you are entitled to spousal/de facto partner maintenance/support payments
- if you have a child or children you are entitled to child support which can be managed through Services Australia (or you can have a private arrangement)
- the parties’ lawyers can assist in negotiations
- if it is necessary to file court proceedings, you can seek early stage court orders without waiting for the whole case to be resolved, such as, where appropriate, those orders set out under the heading above titled “Possible Early Stage Court Orders”
- Even when a Court proceeding is filed the parties’ lawyers can still negotiate during the Court process. Also, the Court commonly directs the parties and their lawyers to attend dispute resolution (such as conciliation conference with an independent conciliator or mediation with an independent mediator).
- Check whether you are receiving the payments to which you are entitled from Centrelink.
Ready to have a conversation?
If you are separating, or thinking about separating, from your spouse or de facto partner who is coercively controlling you through finances then seek legal advice and learn more about what you can do in your situation.