The Ex-Files: Can I get the $20,000 back I paid my now-ex-wife to assist her studies?

Fees for a chiropractor course are causing pain following a relationship breakdown. Photo / 123RF

Q: I separated from my wife two years ago. We have two school-aged children. Shortly after our separation, she decided to study to become a chiropractor. She completed about 18 months of the course before dropping out. I covered her course fees (about $20,000) on the basis she would reimburse me when we divided our relationship assets. She is now reneging on this agreement. However, I can provide evidence via WhatsApp messages confirming her agreement in writing to the arrangement. Will this be enforceable? I can also provide evidence of the payments directly to her course provider.

Also, at the time of separation, we had a very healthy joint bank account with a balance of about $65,000. We have both drawn from this account since we separated, but I am sure my wife has drawn much more. The current balance is $13,000.

Issue one: Chiropractor course fees

The agreement the course fees would be reimbursed to you is not enforceable per se. Agreements between partners or spouses (including exes) regarding the division of their assets are treated differently from ordinary contracting parties. Special rules set out in the legislation apply, including that both parties have independent legal advice and each party’s legal adviser witnesses their signature to the agreement.

However, my view is you should still receive the money back via a different avenue. There is a provision in the relationship property legislation that allows the court to compensate a party who, after separation, has done anything that would have been a contribution had the relationship not ended. Some common examples of “contributions” after separation:

1. Allowing a partner to occupy a home after separation.
2. Servicing a relationship property debt after separation.
3. Caring for a child or children after separation.
4. Paying for or undertaking renovations on a family home after separation.

It is important to note awards of compensation under this section are by no means guaranteed. They are at the court’s discretion – if the presiding judge deems it “just” considering the circumstances of the case. There was a recent family law case in which the judge said the parties’ expectations, and any agreement or arrangement between them, would be relevant to assessing whether compensation should be paid under this section.

In your case, the agreement (of which you can provide proof) was that your wife would ultimately take responsibility for the chiropractic course fees. It is reasonable for you to request compensation for the full sum of the course fees paid. However, in many cases there are competing contributions claims that parties will make and sometimes these will offset each other, either partially or fully (you can imagine the headache this causes for lawyers and judges).

Issue two: Joint bank account

Often, parties will simply divide the balance of any joint bank accounts equally at the time that relationship property is divided between them. Here, you say your wife has drawn more than her fair share from the account, and presumably not to meet any reasonable joint expenses.

You will need to provide evidence of how much you have each drawn from the account since separation. The court can then make an order compensating you for your share of the funds. However, if you did not pay spousal maintenance during this period, your ex-wife may be able to establish that she needed the funds to cover her reasonable needs. This could mean you are unable to recover some or all of the funds she drew from the account.