The Family Lawyers at Adelaide Legal are highly experienced in handling complex property settlements.
If you are dealing with a complex family property settlement it is vital that you seek advice early.
What is Adelaide Legal likely to be dealing with in this kind of property settlement?
Establishing Exactly Who Owns An Asset or Assets
Before you can proceed you need to know who owns each asset of the relationship and at times across the family.
It is sometimes not as straightforward as it at first seems to establish ownership, particularly when dealing with companies and family businesses.
The Federal Circuit and Family Court of Australia expects that you and partner will comply with the rules of disclosure, even if you and your partner agree to how your assets will be divided. To fully understand the nature and ownership of you and your partner’s assets, disclosure of documents pertaining to all assets is necessary.
Businesses are often set up using companies, trading names and family trusts, to protect assets and split income.
This can be complicated further if you have a blended family.
The ownership of an asset can have a serious impact on a settlement dispute, particularly if parents and or siblings of one of the parties are involved.
Under these circumstances, obtaining the correct information and supporting documentation is very important in understanding who actually owns an asset.
To understand what the outcome is likely to be in your particular case, these issues have to be understood completely. Each settlement, including yours, is unique. Therefore, having the correct information is crucially important.
Where you or your partner have received large amounts of cash, things are further complicated.
The amounts involved; how they were received; when they were received; and how they were applied are all considerations which will likely have an impact on the overall property settlement.
These financial assets include things such as:
- Lump Sum Payouts
- Shares & Share Options
Complex Asset Pools
In addition to business holdings, cash and other financial assets there are other holdings that will make up the total asset pool of each individual.
These items include:
Real Estate – both residential and commercial.
Commercial real estate can itself be very complicated as a valuation needs to consider multiple factors including the condition of a property, rents, rates, and utility costs and who actually owns the property.
Overseas property will also make up part of the overall assets of the property settlement.
If you control or receive dividends from a Trust.
Get Property Settlement Advice Early
As soon as you are separated or contemplating separation, if you have complex financial holdings such as business holdings, trusts and overseas property, it is important that you seek advice as soon as possible.
A delay could adversely affect the outcome for you in your property settlement.
“Whilst going through a complicated family law property settlement the team at Adelaide Legal were supportive, transparent and made the process as straightforward as they possibly could. I would highly recommend them.”
Frequently Asked Questions About Personal Injuries
How is Tax Treated In Complex Family Property Settlements?
When negotiating a property settlement, consideration as to tax implications need be applied. For example, when an investment property is going to be sold as part of a settlement there may be Capital Gains Tax payable. Further considering when assets will be sold like investments and businesses the values over time that asset has been held will also need to be accounted for. Therefore, you should speak with your taxation accountant as to the actual tax payable so that it can be included as a liability to the relationship.
There are some exclusions, for example if you are a property developer or a person who deals with stocks and the purpose of your assets is to acquire and sell then the tax implications will not be included as a liability to the relationship.
Careful consideration needs to be had in relation to inherited capital gains tax. When you acquire a property as part of your settlement and you already own property, then you will inherit the capital gains tax as if you have always owned it.
Business scenarios are complex and consideration as to the liabilities of that business may not appear if the business has poor document, incorrect tax paid e.g. unpaid income tax, unpaid superannuation tax. The poor management of a business will then flow through the business structure e.g. the tax payable to Family Trusts. To overcome this, extensive and proper disclosure needs to be complied with to determine whether that tax is included or not.
Get Legal Advice
When you make an agreement without proper consideration, the agreement may be set aside until all the matters have been considered. Therefore, it is important to receive proper legal and accounting advice in relation to your taxation obligations before entering into any agreement.
What Happens To A Business Interest During A Relationship Breakdown?
Businesses including the assets of, are considered property under the Family Law Act 1975 and therefore in essence it is considered in the same way as any other property. When there is no agreement on what your business is worth, the business will need to be valued. Accurate valuations are essential in obtaining the best outcome.
Business structures vary and the considerations are also varied:
Sole Trader: consideration of the key person and other criteria will impact the valuation of your business. Normally, the value of the assets in this structure determines the value.
Business Partnerships: this can be particularly complex when your business partner is also your spouse. The partnership will be required to be dissolved and the spouse that shall retain the business will continue as a sole trader.
Sometimes a partnership is not with your spouse, you should have a written agreement as to what will occur if one partner was to leave the partnership. If you do not have a current partnership agreement, contact us for certainty as to what shall happen in the event of a separation.
Companies: a company shall be excluded from the property depending on who controls it. It is important to know who the shareholders are and what specific type of share they hold. The value of the share is then calculated and included. A shareholder’s agreement should be your starting point to determine value and next actions.
Family Trust: if either of the parties control or has care of a Trust, then more likely than not, the Trust will be included. Are you the Appointer? If so, the court will consider this as an asset and not a financial resource.
Life is not meant to stop, although it may feel like it, when you are separating so what do you do if you need to run the company/business with your ex-partner whilst going through a settlement? You should make an initial agreement on how the business will be run to avoid any breaches of the Corporations Act 2001.
Do Business Debts Become Part Of A Property Settlement?
Normally all personal guarantees, loans, overdrafts etc are included
What Happens To a Business When You Separate From A Spouse Or Partner?
Normally one spouse wants to keep the business because that spouse has usually invested significant time, effort, and money into the business. Therefore, Orders will be drafted to reflect that in the business structure. Sometimes, a payment is made to the other spouse at that time commonly known as a ‘settlement sum’.
If no one wants to keep the business, then it will be sold and normally the proceeds will be divided evenly or in accordance with shares held
How Can You Avoid Litigation In A Complex property Settlement?
It is not ideal to use your resources in the Federal Circuit and Family Court of Australia without good reason. A good reason is sometimes hard to find and with the new family court system launched in September 2021, mediation is commonly required.
Mediation is not binding on the parties and the discussions are confidential. Mediation allows the opportunity to reach an agreement in a setting where a mediator can narrow the issues in a private venue. When an agreement is reached at mediation, an application to the court to formalise the agreement by way of Consent Orders is best practice to sever the financial ties between you and your ex-partner. The filing of Consent Orders does not require the parties or the lawyers to attend at court, a decision of the Registrar will be made that the agreement is just and equitable.
By reducing the trauma of going through the court system a mediation can help to maintain your relationship with your ex-partner so that you can have a collegial relationship at various events/functions once your property has been distributed.
At times, it may be necessary to avoid the court proceedings by entering into a Binding Financial Agreement (‘BFA’). BFA’s have strict rules that must be applied to ensure that the courts jurisdiction remains overthrown.
A BFA is helpful for large net-worth property matters which encompass various types of financial structures and may include potential assets like inheritances.
Should all else fail and not be appropriate in your circumstances, a beneficial outcome in the court can only be achieved by an experienced family lawyer.
What Happens To Assets Not Located in Australia?
With Australia being multi-cultural and the opportunities to purchase properties overseas it is not uncommon that your spouse may have assets overseas. Your spouse may not be forthcoming about their overseas assets assuming that these assets do not apply.
Overseas assets do apply. The Family Law Act 1975 is clear in its’ definition of property being 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;
When the court needs to consider what is a just and equitable distribution, the court first needs to assess the contributions of the parties, the assets at separation and the future needs of the parties. To do this, full and frank disclosure of the assets of each party is demanded by court and this includes all assets controlled by a party including assets not in Australia.
The court will not decide about how overseas assets will be divided if the court decides that it is an inappropriate forum. However, you cannot assume that overseas assets will be in appropriate forum because the court has the power to make orders surrounding ‘….things outside of Australia and the Territories’.
To assist the court, a sworn Financial Statement is filed in the proceedings. Should a party not disclose an asset, penalties may apply. When reviewing a Financial Statement, the documents surround that asset or liability must be available to the other party to review. Complications arise when documents are not able to be provided, however you make an undertaking as to disclosure.
When lawyers are involved in the proceedings and there is a belief that assets are being hidden, lawyers will issue a subpoena to the relevant body. These bodies include banks, accountants, employers, business partners. Upon production of the relevant subpoena, it is wise to invest in a forensic account to review the documents particularly if the documents are produced from overseas trusts and companies.
What happens when you know something is still hidden but you have not been able to locate it through disclosure and subpoenas? The case can be reopened, and serious penalties will apply to the party that has hidden the asset.
If appropriate, Adelaide Legal has appropriate experience to discuss with you the benefits of forensic accountant and subpoenas to ensure that a property settlement is just and equitable.
What Makes Some Property Settlements More Complicated?
Invariably, you have heard from friends and family about the pitfalls or surprises they encountered with a property division with their ex-partner. Here are some of the issues that we determine to be more complex than the other.
Businesses change, it important to understand how the business operates to determine the value. Values change for various reasons and knowing the reason why with accurate information helps you make informed decisions.
How an asset is owned is crucial to determining what may happen in your matter. The protection of companies or trusts is commonly used to split income and assets and knowing who owns that company or trust is key to obtaining the correct information to determining a division of property.
Farms and grazing
Farming and grazing properties change over a year and there are many variables that influence the value of this type of property.
Lawyers provide advice based on evidence. Commonly, multiple documents are required to clarify an issue in dispute. The type of document will add to complexity.
When a valuation is sought the specific instructions to the valuer is key to ensuring that the valuation will be correct. When the valuation is received a careful analysis of the valuation is needed to ensure the value is reasonable or defendable.
Lump sum payment
These payments for injury payouts, lottery wins, redundancy, gifts, inheritances add a level complication. How complex this payment will be considered in a property settlement is based on when the funds were received, how the funds were used. It is not just about the sum that is received but the surrounding documents that allow for that payment to be made to party adds to the complexity.
These are considered more complex because of the volume of material that requires a critical assessment to ensure that you receive a fair outcome. If above is a factor in your relationship, it is prudent to obtain legal advice early from an experienced family lawyer.