Can my ex-partner claim money from my new partner?

Timelines and timeframes

Let’s clarify the time requirements for separation, divorce, and financial settlement.

A couple (regardless of gender) are considered to be de facto when they have been cohabiting for a period of 2 years. If there are children from the relationship, the 2-year requirement does not apply. For a married couple, the marriage applies from the official marriage date.

In either case, financial settlement can be sought:

• within 2 years of separation, in the case of a de facto couple
• within 1 year of divorce, in the case of the married couple.

For a separated married couple, divorce is not mandatory, and may occur several years after separation, if at all.

Financial settlement

Financial settlement may occur in several ways:

1. Where the couple arrive at mutually agreeable terms that they consent
2. If they cannot agree, then the Court will decide upon and issue orders.
3. By obtaining independent legal advice and signing a binding financial settlement.

In case a) the terms are not legally sanctioned until they are processed by the Court and are ratified by Court-issued consent orders.

Fair and equitable

For the Court to arrive at or approve a fair and equitable settlement it needs access to all relevant information, and this in turn requires that both parties make full and frank disclosure regarding all income and assets. Failure to do so may well give the other party legal grounds for revisiting the settlement.

It should be noted that the reporting of each party’s assets is the financial information pertinent at the time of financial settlement, not at the time of separation.

When one party is in a new relationship

It may well be that one or both parties has entered into a new relationship and is cohabiting with someone new at the time the financial settlement is being sought.

The separated party is required to make full and frank disclosure for themselves, but what about their new partner? Is full disclosure of their financials required as well?

The Family Law Act 1975

Section 75 of the Act specifies the list of factors that the Court will consider in deciding upon a fair and equitable judgement. In particular, clause 75 (2) (m) states:

• If either party is cohabiting with another person—the financial circumstances relating to the cohabitation.

While the Act does not require full and frank disclosure of this third party’s financials, some knowledge of their contribution to the household is needed if an informed decision on settlement or spousal maintenance is to be made.

Indeed, a Financial Statement provided for financial settlement is required to disclose information about other members of a household, including:

• Full name and age
• Relationship to the party
• Average weekly income amount

A case in point

In the oft-quoted case of Pates v Pates in 2018, an aggrieved party claimed that her husband had failed to declare any financial contribution at all from his new partner. The Court agreed and found in her favour.

With that said, while the ex-partner was making a claim on her former husband because he had failed in his obligations of declaration, she was not making a claim on her former husband’s new partner, nor could she.

Key takeaways

While a person cannot make a claim on their ex’s new partner, it is vital that:

•         Proper legal counsel from an experienced family lawyer is sought
•         Full disclosure of one’s own financials is made
•         Appropriate disclosure of a new partner’s financials is made

Anything less is fraught.