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Property Settlement

Since the commencement of the Family Law Act in 1975 we have offered advice and representation in all areas of Family Law and De Facto Relationships Law. By maintaining a commercial focus with all Property matters we can offer you sound and comprehensive advice on how to achieve your entitlements to a division of property.

When conducting a property settlement the Family Law Act sets out what matters are to be taken into account. The
following things are among those relevant to a determination of your entitlement:
• The value of your assets and liabilities
• The contributions by or on behalf of each party, financially (such as assets owned at the outset, income earned and monies gifted or loaned or inherited from one party’s family) and non-financially (such as the care of children, home-maker, maintenance or renovations of property)
• Each party’s needs for the future such as age, health, financial resources, care of children and ability to earn.

Your property settlement will depend on your individual circumstances and will likely be different from others you may have heard about. We can assist you to tailor your property settlement to suit your needs, whether it involves remaining in the family home for the children, selling up assets to obtain money to start over, or accessing a share of your partner’s superannuation to provide for you in retirement.

We have expertise in asset tracing and unravelling complex financial arrangements involving trusts and companies. We can give you an early accurate opinion of your entitlements and set out your options for how to obtain what you are entitled to with a minimum of stress and expense.
We understand that principles are important to our clients. We also know that all things come at a cost and we make sure you remain aware of the costs involved in finalising your property settlement through negotiation or court proceedings to make sure the outcome is the best possible financial one for you and your family.

Often there is an imbalance of power between parties, whether because of one party having a greater share of financial resources, one party having greater time with the children, or because of a history of violence or intimidation in the relationship. Legal representation can assist to remove that inequality and prevent the baggage from a broken relationship from impacting on a resolution of property matters.

We can assist you to finalise your property matter through a binding financial agreement which we can prepare and negotiate on your behalf, or through court orders, either by consent or after litigation. Most importantly we can advise you on the best method for your circumstances, whether that is to keep costs to a minimum, to avoid the need for other lawyers to get involved, or to protect your settlement from being overturned down the track. We have a proud record of settling family law matters early where ever possible, but where that cannot be achieved we know you want litigation conducted with strength and vigour to achieve the best possible outcome.

Our advice is intended not only to achieve finality of property matters, but to take steps to protect your estate or your beneficiaries from claims by your former partner, recover the investment made to your assets by your parents, protect the assets you have from future relationships, or obtain an exemption from stamp duty for the transfer of property between you and your former partner, all of which can save you potentially tens if not hundreds of thousands of dollars.

Our Family Law team comprises both male and female Accredited Specialists in Family Law. Our size enables us to match the perfect lawyer to your case both in terms of experience and cost. We draw upon our strong commercial and estate planning expertise and a specialist property group to support all aspects of your Family Law matter. We will work with you to achieve the best possible outcome in your case. We regularly appear in the Family Court and Federal Magistrates Court as well as the Supreme Court, District Court and Local Courts throughout NSW to represent our clients in all areas of Family Law.

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Spousal Maintenance

The Family Law Act provides that a person has a responsibility to financially assist their spouse or former de facto partner, if they cannot meet their own reasonable expenses from their personal income or assets. This obligation can continue beyond separation and divorce. The relevant factors the Court will consider when deciding whether to order spousal maintenance are the needs of an applicant and the capacity to pay of the respondent taking into account for each party:

• age and health
• income, property, and financial resources
• ability to work
• what is a suitable standard of living,
• if the marriage has affected ability to earn an income,

The Court also looks at with whom the children (under 18 years of age or adult children who are disabled) live. Spousal maintenance is different to child support because it is a payment for a spouse, whether married or de facto. It is paid in addition to your entitlement to a property settlement.

We often come across people who, on the breakdown of their relationship, do not have enough money to live at a reasonable standard, while their partner goes on without financial burden. When people separate one party often stops paying for expenses such as the home mortgage, utilities, credit card debts, car maintenance and registration or children’s school fees. This leaves one party with not enough money to cover their own expenses.

The Family Law Act provides a mechanism by which this inequality can be addressed, where one party can obtain regular payments from their former partner until such time as a property settlement is achieved, or sometimes even far beyond that time. These payments, known as spousal maintenance, can even be made in a lump sum.

In our experience spousal maintenance is often overlooked in many applications which can be an expensive oversight. We apply our extensive experience in making and defending spousal maintenance claims to benefit your case.

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Family Trusts

The use of family trusts has become increasingly common in Australia over the last 20 years as a means of effectively distributing income amongst family members to secure tax-effective payments and also as a means of protecting assets from creditors of the business operator and also at times from vulnerable or spend thrift family members who might be likely to dissipate the assets of the trust.

The nature of these trusts can vary widely and, in some families, there will be a number of trusts that are interposed in the overall family business scheme.

When a marriage breaks down and a property settlement becomes necessary, divorcing the trust can be as important (and sometimes more important) than divorcing the former spouse. It is important to ensure that tax implications of the dismantling of the trust (both as to income and capital) are carefully considered to make sure that the right choices are made for you – whether you are remaining in control of the business or are seeking to have your share of the business paid to you by your disentanglement from the trust structure.

All the members of our family law group work closely with our commercial lawyers and have commercial grounding themselves to ensure that opportunities for appropriate planning and opportunities to avoid negative tax consequences are identified and fully explained to you.

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Family Companies

Considerations similar to those in regard to Family Trusts apply in relation to the frequent use by businesses of company structures to protect assets and provide a method of distributing income to family members.

When divorcing, separating a spouse from company affairs needs to be addressed not only with an eye to the family law settlement that is desired between the parties, but also with regard to the tax consequences (both as to income tax and capital gains tax) that can often arise if careful thought to the disentanglement is not given. Divorce is obviously a very unwelcome development in most cases, but it does provide an excellent opportunity for tax planning if the process is approached in the right way.

One problem that is frequently encountered when separating a spouse from a company structure is that it becomes apparent that appropriate corporate governance and compliance with corporations and tax laws has not been in place throughout the period in which the company or companies have been used.

We have considerable experience not only in valuing the company and trust interests, but in identifying potential tax stings as well as tax opportunities to try to maximise the benefits for our divorcing clients.

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