What is Considered Property in Family Law and When Can I Get Rid of His or Her Stuff?

When a relationship ends one of the most common initial reactions is to want to sell, burn or otherwise dispose of your former partner’s belongings or things you had purchased together. Whilst there are numerous articles in magazines and online about the psychological and emotional benefits of culling your ex’s stuff, few mention the implications this may have on your family law matters.

What is considered property?

When dividing assets, the Family Court applies a four step process which starts with ascertaining the value of the asset pool available for division. Property is defined by section 4 of the Family Law Act 1975 as:

“Property, in relation to the parties to a marriage or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”

Whilst this of course includes more obvious items such as real estate, cars, superannuation and bank accounts it also includes various personal belongings such as furniture, artworks, jewellery or collectibles. Essentially, determining an asset pool includes everything that you are your partner own jointly or as individuals.

This can be further complicated when considering matters such as inheritance, pension entitlements and accrued long service leave which may be considered by the Family Court to be a financial resource. It is important to distinguish between what is property and what is a financial resource as this may impact the overall division of assets. 

When can I get rid of his/her stuff?

The general position is that no items should be sold, encumbered, damaged or in any other way disposed of until property matters are resolved on a final basis. You may have seen the recent “Art of Divorce” auction held by Russell Crowe in Sydney where he made approximately $3.7 million selling off various artworks, jewellery and collectibles accumulated through his career.

As tempting as it may be to auction off or throw out your ex’s belongings, this ought to be done only following a final agreement, which we recommend is documented by way of formal Family Court Orders to ensure enforceability and finality. Attempting to sell, dispose of or otherwise damage goods involved in family law matter may give rise to urgent proceedings being commenced in the Family Court seeking an injunction against one party from doing.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

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