Family Law Property Settlements

Transcription

1 Family Law Property Settlements James Tan, Senior Lawyer Kingdom International Legal Network This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 1

2 Introduction Corney & Lind Lawyers Pty Ltd Mid size law firm 18 lawyers + 30 staff Our focus areas Schools & Education Not for Profit & Charity Commercial Employment & Discrimination Personal Injury Commercial & Construction Litigation Migration & Visas Family Law Criminal & Traffic Estate & Elder Law Our lawyers travel to you if needed Specialist lawyers committed to delivering just redemptive outcomes with care and integrity Based right next to the CBD opposite the RBWH transport hub This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 2

3 Purpose of these Presentations Information Sharing How are things done in a different jurisdiction? What can we learn from each other? This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 3

4 You Are Proverbs 31:8 to 9 Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy. You are: 1. Order to the Disorder 2. A Voice to the Voiceless 3. Going from Glory to Glory 4. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 4

5 A Voice to the Voiceless Matthew 25: Then the King will say to those on his right, Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. 35 For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, 36 I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me. 37 Then the righteous will answer him, Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? 38 When did we see you a stranger and invite you in, or needing clothes and clothe you? 39 When did we see you sick or in prison and go to visit you? 40 The King will reply, Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 5

6 Kokoda This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 6

7 Cooking in Fiji How big is the Kokoda? How many ingredients were bought by each party? Who did most of the cooking? What portion will each party (or the people in their care) need so no one goes hungry? Is it fair if the parties walk away with those set portions? This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 7

8 The 4 Step Process in Australia Net Asset Pool? Contributions? Future Needs Factors? Just and Equitable? Possible to seek interim orders, so that parties have money to obtain legal representation. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 8

9 Net Asset Pool Australian Definition "property " means: (a) 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; or (b) in relation to the parties to a de facto relationship 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. Fijian Definition "property", in relation to the parties to a marriage or either of them, means property within or outside the to which those parties are, or that party is, entitled, whether in possession or reversion; This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 9

10 Net Asset Pool Australian Definition "property " means: (a) 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; or (b) in relation to the parties to a de facto relationship 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. Fijian Definition "property", in relation to the parties to a marriage or either of them, means property within or outside the to which those parties are, or that party is, entitled, whether in possession or reversion; This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 10

11 Contributions Australian Definition (s79) (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that lastmentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 11

12 Contributions Australian Definition (s79) (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 12

13 Contributions Fijian Definition (s162) (1) In considering what order (if any) should be made under section 161 in proceedings with respect to any property of the parties to a marriage or either of them, the court must take into account- (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the lastmentioned property, whether or not the last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent (2) For the purposes of subsection (1) the contribution of the parties to a marriage is presumed to be equal, but the presumption may be rebutted if a court considers a finding of equal contribution is on the facts of the case repugnant to justice, (for example as a marriage of short duration.) This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 13

14 Future Needs Factors Fijian Definition (s162(3)) (3) The court must also take into account- (a) the age and state of health of the parties; (b) the income, property and financial resources, including any interest in capacity of each of them for appropriate gainful employment; (c) whether either party has the care and control of a child of the marriage who has not attained the age of 18 years; (d) the commitments of each of the parties that are necessary to enable the party to support- (i) himself or herself; and (ii) a child to another person that the party has a legal or customary duty to support. (e) a standard of living that in all circumstances is reasonable; (f) the financial resources available to a person if cohabiting with another person; (g) the duration of the marriage; (h) the terms of any order for spousal or child maintenance made in favour of or against a party; (i) any other fact or circumstances which, in the opinion of the court, the justice of the case requires to be taken into account. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 14

15 Future Needs Factors Australian Definition (s75(2) (2) The matters to be so taken into account are: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 15

16 Future Needs Factors Australian Definition (s75(2) and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party's role as a parent; and (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 16

17 Future Needs Factors Australian Definition (s75(2) (n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (p) the terms of any financial agreement that is binding on the parties to the marriage; and (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 17

18 Just & Equitable Excerpt from the High Court of Australia s summary of Stanford v Stanford [2012] HCA 52 The husband and wife married in In December 2008, the wife suffered a stroke and moved into full time residential care. She was later diagnosed with dementia. The husband continued to provide for her care and set aside money in a bank account to meet the costs of her medical needs or requirements. He continued to live in the matrimonial home. In 2009, the wife (by one of her daughters as case guardian) applied to the Family Court for orders altering interests in the marital property between the wife and her husband. Under the Family Law Act 1975 (Cth), a court can make a property settlement order if it is "just and equitable" to do so. At first instance, a magistrate ordered that the husband pay his wife $612,931, which represented the amount assessed as her contribution to the matrimonial assets. The husband appealed to the Full Court of the Family Court. After the appeal had been heard but before judgment was delivered, the wife died and her daughters continued the proceedings as her legal personal representatives. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 18

19 What assets & liabilities form part of the Net Asset Pool? This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 19

20 What assets & liabilities form part of the Net Asset Pool? House Car Furniture and Effects Cash in bank accounts Superannuation Shares Companies and Businesses - Maybe Trusts Maybe Compensation payments and Windfalls such as Gifts Under a Will Maybe Cash in bank accounts held in another person s name - Maybe This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 20

21 Keep a checklist of Disclosure Documents you want House Contract of Sale, Valuations, Mortgage Application Car Contract of Sale, Valuations, Loan Application Furniture and Effects Cash in bank accounts Bank Statements, Payslips. Superannuation Superannuation Statements, Valuation. Shares Share Certificates, Purchase Contract, Sale Contracts. Companies and Businesses Articles of Association, Financial Statements and Tax Returns Trusts Trust Deed, Financial Statements and Tax Returns. Compensation payments and Windfalls such as Gifts Under a Will Cash in bank accounts held in another person s name Bank Statements This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 21

22 Keep a Spreadsheet of the Property Pool Lady Value Jointly Held Value Man Value Cash $200 House $400,000 Car $400 Total Lady $200 Total Jointly Held Total Assets Total in Assets $401,000 Cash $400 $400,000 Total Man $800 This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 22

23 Keep a Spreadsheet of the Property Pool Lady Value Jointly Held Value Man Value Cash $200 N/A N/A Car $400 House $400,000 Cash $400 Total Lady $400,200 Total Jointly Held Total in Assets $401,000 % to Lady 99% Total Jointly Held Proposed Split to lady Adjustment Needed Proposed Split Nil Total Man $800 Nil Total Man 1% 50% Proposed Split to man -$196,490 Adjustment Needed 50% -$196,490 This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 23

24 Companies and Trusts Part of Property Pool? What if a party is attempting to hide assets behind a Company or Trust? If it walks like a duck, swims like a duck, quacks like a duck must be a duck Alter Ego. Control. Benefits. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 24

25 Windfalls What are the circumstances surrounding the Windfall? Certainty of the Windfall? What contributions have been made towards the circumstances that gave rise to the Windfall? Does it need to be part of a separate and discounted pool? This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 25

26 Transactions Entered into to Defeat Proceedings Section 106B of the Australian Family Law Act 1975 Transactions to defeat claims (1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (1A) If: (a) a party to a marriage, or a party to a de facto relationship, is a bankrupt; and (b) the bankruptcy trustee is a party to proceedings under this Act; the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the bankrupt; and (d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (1B) If: (a) a party to a marriage, or a party to a de facto relationship, is a debtor subject to a personal insolvency agreement; and (b) the trustee of the agreement is a party to proceedings under this Act; the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the debtor; and (d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (2) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order. (3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested. (4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition. (4AA) An application may be made to the court for an order under this section by: (a) a party to the proceedings; or (b) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or (c) any other person whose interests would be affected by the making of the instrument or disposition. (4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1). (5) In this section: "disposition " includes: (a) a sale or gift; and (b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust. "interest " : (a) in a company includes: (i) a share in or debenture of the company; and (ii) an option over a share in or debenture of the company (whether the share or debenture is issued or not); and (b) in a trust includes: (i) a beneficial interest in the trust; and (ii) the interest of a settlor in property subject to the trust; and (iii) a power of appointment under the trust; and (iv) a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and (v) an interest that is conditional, contingent or deferred. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 26

27 Transactions Entered into to Defeat Proceedings Section 169 of the Fijian Family Law Act Transactions to defeat claims 169.-(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction of or in the interest of a party, that is made or proposed to be made to defeat an existing or anticipated order in those proceedings or if, irrespective of intention, it is likely to defeat any such order. (2) The court may order- (a) that the money or real or personal property dealt with by any such instrument or disposition of the kind referred to in subsection (1) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs; or (b) that the proceeds of a sale are to be paid into court to abide its order. (3) The court must have regard to the interests of, and must make any order proper for the protection of, a bona fide purchaser or other person interested in an instrument or disposition of the kind referred to in subsection (1). (4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested in and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition. (5) In this section, "disposition" includes a sale and a gift. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 27

28 Transactions Entered into to Defeat Proceedings Section 169 of the Fijian Family Law Act Transactions to defeat claims 169.-(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction of or in the interest of a party, that is made or proposed to be made to defeat an existing or anticipated order in those proceedings or if, irrespective of intention, it is likely to defeat any such order. (2) The court may order- (a) that the money or real or personal property dealt with by any such instrument or disposition of the kind referred to in subsection (1) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs; or (b) that the proceeds of a sale are to be paid into court to abide its order. (3) The court must have regard to the interests of, and must make any order proper for the protection of, a bona fide purchaser or other person interested in an instrument or disposition of the kind referred to in subsection (1). (4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested in and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition. (5) In this section, "disposition" includes a sale and a gift. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 28

29 Take Home Messages 4 Step Process Important to get it right. Net Asset Pool Property has a very broad definition, and a lot of assets and liabilities can fall into the pool. Hard to hide assets and remove it from the Net Asset Pool. The most effective asset protection occurs before the marriage breakdown. Excellence in File Management can assist you in keeping on top of the asset pool and values needed for negotiations. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 29

30 A Voice to the Voiceless Family law Property Settlements DISCUSSION TIME: What do you do differently in Fiji, and how can that help Australians improve in the way they run Family Law Property Files? How can our Family Law strategies be modified to better fit Fiji? Any other questions? This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 30

31 Next Session From Glory to Glory Growing your Law Firm Specialised roles and responsibilities for growth. Meetings, policies and procedures to improve growth, accountability and team spirit. Computer systems and procedures to improve efficiencies. Improving billables. This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 31

32 Contact Name: James Tan Position: Senior Lawyer This presentation is information only not legal advice Corney & Lind Lawyers Pty Ltd Page 32