DIVIDE NOW OR PAY LATER
In a decision that has taken many lawyers by surprise, the Full Court of the Family Court has recently dismissed an appeal from a decision that questioned whether property acquired post-separation could form part of the asset pool available for division.
The parties married in February 2002 and separated during 2010. They were divorced the following year.
There was one child of the marriage who was cared equally by the parties.
Somewhat surprisingly, it was not until 2015, some 5 years after separation that the wife commenced proceedings for a property settlement. She was successful in obtaining leave to file her application out of time.
At the time of their marriage, the wife had nominal assets. The husband owned two properties: a motor vehicle, a share portfolio and enjoyed superannuation entitlements.
At the time of separation, the asset pool consisted of the two properties: shares and superannuation.
What is relevant is that 3 years after the parties separated, the husband received an inheritance from his father's estate. At the time the proceedings were issued, the remaining portion of the inheritance represented 32% of the value of the assets.
The Judge in the first instance held that the remaining monies of the inheritance were to be included in the asset pool available for division.
In determining what would be a "just and equitable" division, the Trial Judge divided the assets on a 65:35 basis in favour of the husband.
The husband appealed the decision. He was unsuccessful.
It is important to note that being divorced (marriage) or being separated (domestic relationship) does not, in itself, dissolve your financial relationship. You may be subject to a subsequent claim for a property settlement.
This case serves as a reminder to everyone going through a separation: DIVIDE NOW OR PAY LATER.
The case also serves as a reminder as to why people entering into a relationship or marriage should consider a Binding Financial Agreement.
For information on how to finalise your financial relationship, please contact one of our experienced family lawyers on (03) 8602 2000.
We are pleased to again be recognised as one of Melbourne's top rated Family Law firms.
The announcement was made by Doyle's Guide. It is an independent ranking based on extensive research and interviews with clients, practitioners and industry bodies.
We are proud of our achievement and look upon it as evidence of our commitment to meet the needs of our clients and to find solutions to their problems in a timely and cost effective manner.
We welcome Satbir Singh to our team of expert family lawyers.
After completing his degree, Satbir completed his Practical Legal Training at Schetzer Constantinou. Satbir then commenced work as a Judge's Associate in the Federal Circuit Court of Australia with a focus in Family Law, both parenting and property matters. After completing two years with the Federal Circuit Court, Satbir returns to Schetzer Constantinou Lawyers.
We are delighted to have Satbir join our team.
After graduating from Melbourne University in 1974 and completing his articles, David became a Partner at a well established Law firm. After 30 years David went on to establish Pearsons Schetzer and Associates. In 1990 David achieved Specialist accreditation in Family Law.
David talks to Dollars With Sense TV explaining What Family Law Is.
David Schetzer - do you need a lawyer when divorcing? - Dollars with Sense TV
The Federal Government has announced legislation that will have sweeping effect on parties acquiring property as and from 1 July 2016.
The Tax and Superannuation Laws Amendment (2015 Measures No. 6) Act 2016 presumes that a Vendor of real estate is a non-resident UNLESS a clearance, proving Australian residency (or some other valid exemption), has been obtained prior to settlement and provided to the Purchaser.
This provision will equally apply to transfers to parties in Family Court proceedings.
In the event a Clearance Certificate (or a valid exemption) is not obtained prior to settlement and the value of the property exceeds $2million, the Purchaser will be obliged to:
(a) withhold 10% of the proceeds;
(b) register for withholding tax; and
(c) pay the withholding tax to the Australian Taxation Office.
The changes in the law will have a direct affect on all real property (residential and commercial) transactions that are valued over $2million. The changes do not apply where:
(a) the value of the property is less than $2million;
(b) the transaction is listed on an approved stock exchange; or
(c) the transferor is under external administration or in bankruptcy.
The value of the property is to be determined by the sale price or by an expert valuation.
The new legislation will have a significant impact on many transactions. It is therefore important that legal advice is obtained as soon as practicable. We are able to assist in providing the necessary advice.