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What you need to look for in complex family law property settlements

What you need to look for in complex family law property settlements

By Jane Bentley, Joanne Randello and James Pergl

Real Property 

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This article was contributed by Jane Bentley, Senior Associate, Joanne Randello, Special Counsel, & James Pergl, Special Counsel from Meerkin & Apel Lawyers.

Acting for family law clients in complex property matters can sometimes be overwhelming - there are many elements to consider and provide advice on. To help you navigate through these elements, here is our brief guide on what to look for when identifying and valuing the pool in complex property matters.

Trusts

If you’re dealing with a client who holds property interests through a trust, or the other party holds an interest in a trust firstly consider what the party’s interest is in the Trust.

Consider who has an interest in the Trust and who has control.

Other questions you may need to consider include:

  • Is the Trustee and/or Appointor a family member or a company?
  • If a company, who are the Directors and Shareholders? I.e. who has control of the company?
  • Is the spouses’ interest as a beneficiary? If so, what interest does that spouse have as a beneficiary?

Ask for the Trust Deed and any amendments, returns and financial statements and bank statements.

Consider whether there are any loan accounts between the parties and the trust.

Real Property

Undertake a title search and index name searches.

If you client is not on title, consider whether your client has a caveatable interest (just because the parties were in a relationship does not necessarily result in an interest).

  • If your client does have a caveatable interest, seek instructions to lodge a caveat as soon as possible if real property is involved and your client is not on title.

Check with the bank whether your client or the other party have signed any guarantees or mortgages.

Recommend that valuations be obtained for real property assets of the marriage (and warn your client of the risks of not doing so in writing).

Companies

Obtain your client’s instructions to conduct comprehensive searches and appropriate enquiries so any consent order may be framed with full knowledge of the asset and liability position.

Ask for the returns and financial statements and bank statements.

Property Overseas

Engage an agent early in the country where the property is held.

Check whether there are any conflicting laws.

General Tips & Tricks

Advise your client to retain an independent accountant when considering the property division.

Where the property is in the name of the former spouse and represents a significant asset of the marriage:

  • seek formal written acknowledgement from the former spouse that he or she will not draw down further funds against the property or otherwise encumber it;
  • write to the mortgagee (and include a copy of the acknowledgement if you receive one) and ask that the mortgagee agree it will not allow further funds to be drawn down against the property;
  • if the former spouse or mortgagee will not provide the above acknowledgement or agreement, consider applying to the court for an injunction preventing further funds being drawn down or other encumbrances being imposed on the property.

If you are instructed not to deal with the property matters, advise your client that any delay may result in property being dissipated. Keep a file note and confirm this advice and your client’s response in writing.

And, as always, ensure you advise, and document that you have advised, your client of the 12 month/2 year limitation period.

 

Want to know more? Make sure to register for the LIV Academy Series – Property workshop in the Family Law stream. Facilitated by Jane Bentley, this workshop will help you identify and address complex issues in family law property settlements to understand the ways and means by which you can help your clients best secure “their” slice of the family’s property and become a more effective advocate for their interests.

 


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