In Family Law Property settlement proceedings all assets and liabilities of each party, are combined to form the matrimonial property pool. Business interests regardless of structure are included in the definition of “property” under the Family Law Act 1975 and will part of this asset pool. Therefore, there is no way of lawfully protecting assets from a Family Law Property Settlement claim by having assets sitting in a company structure which shares you own.
Trust structures
Typically, an asset acquired under a trust is also regarded as “property” under the Family Law Act 1975 and that interest will form part of the available asset pool. Even if not strictly a property, then it is a financial resource which is a critical consideration in the context of family law property settlement.
In the well-known case of Kennon vs Spry wherein the Court allowed the assets of the family trust to be included as part of the available pool for distribution between the spouse parties because the judge decided that
“there are facts in this case which establish a connection between the trust assets and the husband”.
For a trust asset not to be considered as “property” available for distribution in a Family Law Property Settlement the trust must:
- Be set up initially with no control over it by the spouse party.
- Ensure the distributions by that trust cannot bring about a suggestion that there is a pattern of distribution to that party.
- Not be set up with the intention to defeat claims. Therefore, the time it was set up and the justification for it are key considerations.
Binding Financial Agreements
The only effective way to protect your assets from a Family Law property Settlement is to enter into a Binding Financial Agreement with your partner. Binding Financial Agreements can be entered into at any time before, during and after marriage.
By such an agreement, the spouse parties clearly define what is to occur to their assets in the event of separation. In essence a properly prepared agreement ousts the jurisdiction of the Family Court that is, the Court is not able to distribute the assets of the parties, if there is in place a proper Binding Financial Agreement clearly explaining what is to occur.
For a Binding Financial Agreement to be effective, solicitors must provide certificates that the agreements were explained to their clients as to the effect and both the advantages and the disadvantages of entering into such an agreement.
Matters that should be considered when drafting a Binding Financial Agreement
It is our experience that many Binding Financial Agreements are drafted addressing what happens to the property owned by the parties only. This can mean that you may still have legal proceedings to deal with other matters. We recommend that you consider these additional matters when instructing your lawyer in drafting a binding financial agreement.
1. Superannuation
Agreement can be reached as to splitting superannuation or allowing a party to retain their super in its entirety.
2. Child maintenance
Agreement can be reached as to the amount of child maintenance that would be payable or whether no claim for child maintenance will be made.
3. Spousal maintenance
Agreement can be reached as to the amount of spousal maintenance that would be payable or whether no claim for spousal maintenance will be made.
4. Transfer or sale of property
Agreement can be reached regarding what happens to certain property in the event of separation. This may be of importance to Real Estate that has been within a family for a period.
We understand Family Law and business. We know what should be included in a Binding Financial Agreement so that your assets are truly protected in the event of the breakdown of a marriage or de facto relationship.
Depending on the complexity of the Binding Financial Agreement we charge from $3,300 to draft a Binding Financial Agreement, and to provide the necessary certificate.
How do you choose the best family lawyer for you?
We want to begin by acknowledging how difficult it must be for you to choose the Family Lawyer who is the best fit for your circumstances. Who do you trust? With most law firms claiming to be the best family lawyers in Parramatta, how do you work through the sales pitch to find the truth?
Here are a few things that we thought may assist you in making your decision:
1. Do your research.
Most law firms have a listing on google maps where clients can leave feedback. Most reputable firms will have at least 20 testimonials. CK Lawyers has a score of 4.8 out of 5 on google.
2. Ascertain the qualifications of the lawyers who will deal with your case.
While many lawyers may claim to be the best and to be passionate about their field of law, their qualifications will show how committed they are. The head lawyer of CK Lawyers, Walid Kalouche has dedicated his life to the study of Family Law and Business Law. He holds a Bachelor of Economics, a Masters degree of Laws majoring in Commercial law and another Masters Degree in Applied Family Law. This unique blend of family law and business law knowledge and experience is most valuable in complex property disputes.Walid has also earned a vocational diploma in Family Dispute Resolution mediating family disputes for families for over 10 years.Walid is also a Notary Public capable of authenticating or verifying any document for use Worldwide.
3. Are they honest and transparent about the fees they charge?
We believe in being open and honest about the fees that we charge. Our fees are set out on this page. We will provide you with a written quote for the work that we will do for you at our first consultation. If you cannot afford our fees you are under no obligation to formally retain us and we will not charge you for the initial consultation.
