Can spending after separation affect your property settlement?
Life does not stop after separation, and neither do expenses. But how might spending on legal fees, child support and other costs affect your property settlement?
What happened in Bendon & Sloan?
In Bendon & Sloan [2026] FedCFamC1A 130, the Federal Circuit and Family Court of Australia considered whether expenditure of joint funds for one party’s own legal fees and child support liabilities can be taken into account in a property settlement. It follows on from the decision of Shinohara & Shinohara [2025] FedCFamC1A 126 which confirmed that the court can only take into consideration property that is in existence at the time of hearing (and not assets which may no longer exist).
In Bendon & Sloan, the de facto husband’s assets had reduced by approximately $340,583 in the space of two years following separation. Of these funds, the de facto husband spent $244,867 on his own legal fees and $82,677 on his assessed child support payments to the de facto wife.
The court found that it would be unfair to the de facto wife if the de facto husband’s post separation expenditure were not taken into account. If the de facto husband’s expenditure was not taken into account, the effect would be that:
The de facto wife had contributed to the de facto husband’s legal fees
The de facto wife had contributed to her child support payments
The de facto wife’s percentage division of the property pool would be smaller, noting that the de facto husband’s expenditure had depleted some of the asset pool for division.
In light of the above, the Court awarded the de facto wife 5% more of the total property pool.
How can I pay my legal fees after separation?
The general rule in Family Law is that each party is responsible for their own legal fees.
If you are experiencing separation, it is likely that you and your spouse or de facto partner will both be incurring legal fees. This is normal and expected.
In certain circumstances, you may be able to ask the court for your former partner to contribute to your legal fees, or for an early release of funds to help cover those costs.
As demonstrated in Bendon & Sloan, the Court may make an adjustment to the other party if a party pays for legal fees from the asset pool available for division.
Will the court consider all spending after separation?
Under the Family Law Act 1975, the court has a broad discretion with what is taken into account when determining a property settlement. The court must ensure that a property settlement is fair, and in doing so, can consider post separation expenditure, particularly if the money was spent without the other party’s agreement.
This is to be balanced with the notion that parties are not expected to stop spending money after they separate from their spouse or de facto partner. The Court recognises that parties’ expenses will continue and the household costs are likely to increase (especially if one party vacates the family home and moves into rental accommodation). However, large expenses after separation can be taken into account by a court. For that reason, you should obtain legal advice before making financial decisions after separation.
What other cases show
What Bendon & Sloan and other cases show is that a court may adjust the asset pool in favour of one party if the conduct of the other party (and specifically spending without the other party’s agreement) would render the outcome unfair without taking such expenditure into account.
Examples of other family law cases include:
Basara & Wasen [2021] FedCFamC1A 83 – the husband dealt with his superannuation in various ways which reduced his superannuation interest from $872,397 to $106,327. The wife received an additional 5% of the property pool as a result of the husband’s dealings with his superannuation.
Abraham & Abraham (No 2) [2026] FedCFamC1F 8 – the husband wasted part of his personal injury settlement, had incurred greater legal fees, and had benefited from a part property settlement. The wife received an additional 20% of the asset pool.
Idoni & Idoni [2013] FamCA 874 – the husband had control of the parties’ self-managed superannuation fund which was originally worth between $200,000 and $300,000. The fund’s value fell to about $22,000. The wife received an additional 3% of the property pool.
Anselmo & Anselmo (2026) FedCFamC1A 87 – the husband had paid over $230,000 more in legal fees compared to the wife. The wife argued that she should receive more of the property pool due to the husband’s legal fees. The court made no adjustment as the husband paid his legal fees from income and loans, as opposed to assets which the wife had contributed to.
The key takeaway
What you spend after separation may be taken into consideration by a court if it creates an unfairness to the other party.
If one party spends a significant amount of money without the other party’s agreement and reduces the property pool as a result, the other party may receive a higher percentage of the property pool.
Before making financial decisions post separation it is important to obtain legal advice.
Need advice about post separation expenditure?
Every situation is different. Anne-Louise Pham, Principal Lawyer and Accredited Specialist, can provide confidential advice about your circumstances and help you decide the most appropriate next steps in your property matter.
Contact Anne-Louise to discuss your situation.
