Is my partner entitled to my inheritance if we separate?

◷ 2 minute read

In Australia, inheritance is generally considered to be a financial resource of an individual, and as such, it may be taken into account when determining a property settlement in the event of a separation or divorce under the Family Law Act 1975.

However, whether or not your partner is entitled to a share of your inheritance will depend on the specific circumstances of your case, such as whether the inheritance has been kept separate from joint assets and whether it was intended to be a gift to you alone or a joint asset.

In the case of Bonnici v Bonnici (2018) FCCA 346, the Federal Circuit Court of Australia considered the treatment of inheritance in a property settlement. The court held that an inheritance received by one party before or during the relationship, which was kept separate from joint assets and not used for the benefit of the other party or the relationship, should generally be considered the property of the party who received it.

This means that if the inheritance has been kept separate and has not been used to benefit your partner or your relationship, it is more likely to be treated as your own property and not included in the asset pool to be divided upon separation.

However, if the inheritance has been mixed with joint assets or used for joint expenses, or if there is evidence that it was intended to be a gift to both of you, then it may be considered a joint asset and subject to division upon separation.

It is important to note that family law related matters are fact-specific to each case and the court may consider other factors such as the length of the relationship, the parties’ financial needs, and the conduct of the parties when determining a property settlement. Legal advice should be sought in relation to family law matters so that advice make be tailored to your individual circumstances.

Should you have a family related enquiry, please do not hesitate to contact our team for assistance.