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My ex-husband and I settled our finanical and child matters

 
Sydney-Lawyer's Avatar
  • Answered by:Sydney-Lawyer
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Customer Question

My ex-husband and I settled our finanical and child matters in June 2011. During the settlement I was told I had no claim to his long service leave value as it had not been realised. He has since cashed it in and has received the finanical payout during the last financial year. Do I have a claim to it as I assume he new whilst we were in proceedings that he would be cashing it in? Thanks in advance

Submitted: 278 days and 20 hours ago.
Category: Australia Law
Value: AU$46
Status: CLOSED
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Expert:  Fran-mod replied 278 days and 14 hours ago.

Hi, I’m a moderator for this topic and I wonder whether you’re still waiting for an answer. If you are, please let me know and I will do my best to find a professional to assist you right away. If not, feel free to let me know and I will cancel this question for you. Thank you!

Customer replied 278 days and 14 hours ago.

Hello, Yes I am still waiting for an answer. Thank you

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Expert:  Fran-mod replied 278 days and 14 hours ago.

Sometimes, finding the right Expert can take a little longer than expected and we thank you greatly for your understanding. We’ll be in touch again shortly.

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Expert:  Sydney-Lawyer replied 277 days and 17 hours ago.

Good evening,


In the application for consent orders was his superannuation disclosed?

Were you legally represented and if so what are your solicitor that advised you that the superannuation could not be split?

Was his superannuation a defined benefit scheme or an accumulation scheme?

Was the settlement done by all orders or a binding financial agreement?

Customer replied 277 days and 17 hours ago.

Hello, my question pertains to his long service leave benefit not superannuation. We agreed to keep our own superannuation, and this was documented in our final orders. Settlement was done all by orders. I was legally represented and my first lawyer told me I had claim to his long service leave value. The court appointed lawyer overseaing our pre trial hearing told me until it was realised I did not. She did say that if he did then go and 'cash them in' I could then have a claim after the fact. Is this correct? Thanks

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Expert:  Sydney-Lawyer replied 277 days and 17 hours ago.

Good Evening,


My apologies for the confusion.

You cannot claim on his long service leave because of the time he had not received it and while continuing to work there was no guarantee that he would receive it.

The advice that you were given was correct as the family Law act does not permit you to claim unrealised sums.

It is the same when it comes to inheritances. You cannot go back and claim an inheritance should be included in the settlement because a parent passed away a few months after the sum was signed.

This is just not permitted.

I'm sorry I cannot give you anything more positive.

I hope this is of assistance. If you have any further questions please do not hesitate to contact me

Having answered your question I would like to explain how I am paid for my work. The rating given by you, for my answer will decide whether or not I will be paid for my work.

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Customer replied 277 days and 17 hours ago.

I am pretty sure he was already in talks with his employer that he was going to take a redundency or sell back his long service leave prior to us settleling our financial agreement. We were together for 15 years so the majority of it was acrued during our relationship. So I suppose my question is if it can be proven that he knew he was going to get it prior to us settleling, but did not do it until after, do I have a case to claim it? THanks.

Accepted Answer

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Expert:  Sydney-Lawyer replied 277 days and 17 hours ago.

Good Evening


The relevant thing in family law is wether it is realised and received. Until it is received it does not exist.

If you can prove that he was to receive it before the settlement and he arranged to delay it it till after then you may be able to have the court re-open the settlement.

If nothing exists prior to the settlement date they will not do anything.

I hope this is of assistance. If you have any further questions please do not hesitate to contact me

Having answered your question I would like to explain how I am paid for my work. The rating given by you, for my answer will decide whether or not I will be paid for my work.

At the end of this post you will see 5 faces asking you to rate my work. Selecting either of the 2 the unhappy faces means you are not happy with my answer and do not wish me to be paid for my work. The other 3 mean I am paid.

I would prefer you rate me at the very end of our session not after each response. This way I can be sure you have an answer that assists you and you can rate the whole experience.

If you want more information after I respond, or wish to have something cleared up, select "Reply so Sydney-Lawyer" or "Reply to Expert" and we can continue until you are satisfied.

I am here to assist you as quickly as possible, and you rating each post will delay the process as it does not tell me what the issue is. I would prefer you ask me questions than rating the response and not providing me with further questions.

Expert TypeSolicitor
Category: Australia Law
Pos. Feedback: 96.1 %
Accepts: 16592
Answered: 7/2/2012

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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