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Property assets: future tax considerations

Can future tax liabilities be taken in account when reaching a property settlement with your former partner? 

What place can future tax hold in determining property assets?

Can future tax liabilities be considered in Family Law proceedings?

One of the first steps to be taken following a separation is to determine the assets and liabilities of the relationship – known as the “property pool”. Before the property pool can be distributed between the parties, the items which make up the pool must be established and valued. Attributing a value and determining the associated liability of an item is important as it allows us to work out the overall percentage of the property pool the parties will receive. This task has to be done fairly, first and foremost, so that the court can be satisfied that the division is just and equitable, but also so that each party can feel satisfied with the result and be able to move on to the next chapter in their life.

So, what about future tax liabilities?

In the matter of Rogers,1 a husband argued that the possible future tax liability of the family business (being transferred from the parties jointly, into the sole name of the husband) should be paid from the matrimonial property pool. If he were successful in his argument, the value of the property pool would be reduced by some $517,000. It is important to note that at the time of the trial, the tax liability had not issued and was anticipated only – no one could be sure what the liability would amount to if it became payable.

The Court held that liabilities that were vague or uncertain (such as future tax liabilities), could not be deducted from the property pool. In this case, as the tax liability was uncertain and could change in the future, the court found that it was not just and equitable to reduce the property pool on account of the future anticipated liability.

As seen from Rogers, we now know that future tax liabilities and other uncertain future anticipated liabilities, generally won’t be considered in a matrimonial property pool.

 

Sources:

1                  Rodgers [2016] FamCAFC 68

2              Glade-Wright, Robert (2016). “Future tax debts remain out of pool” in Proctor, Queensland Law Society, September 2016 – Vol.36 No.8.

Assets

How to avoid whittling away your assets pool on legal bills

Your pool of assets often holds a lot of value, so it’s important to consider how you can best maintain its worth. Here’s some key strategies to keep in mind.

Assets

How to avoid whittling away your pool of assets on legal bills

One way to avoid whittling away your valued assets pool? Settle! However, that may be easier to say than it is to action, dependent upon the issues involved and the personality profile of your former partner.

In fact, the vast majority of people will settle their family law matters. The amount that you and your former partner will spend in legal fees will be influenced by a number of factors. However, it is generally true that the longer your matters remains unresolved, the more it is likely to cost each of you and your former partner in legal fees.

Settling sooner rather then later then may well result in considerable savings to you.

It may be more difficult to settle where the issues involve your children and their living arrangements but you should still consider the areas where you are willing to compromise with your former partner.

If you having to make a property settlement with your former partner, it is useful to bear in mind what are your likely costs if you are obliged to pursue your matter through to a court action.  You should take those likely costs into account when considering what offer you may be willing to make to settle the matter with your former partner.

For more information about property settlement and maintaining your pool of assets, see here. Or, you can contact our experienced team of lawyers today for a free 15 minute consultation.

 

Property Settlements

Former partner wasted your assets? Can property settlements help you recover any losses?

Can property settlements help you recover assets your former partner wasted?

Property Settlements

Former Partner wasted your assets? Can property settlements help?

 

Your former partner may have spent money during your relationship on a regular basis gambling or buying alcohol or making high risk investments that resulted in financial losses.  Your former partner may have sold assets, particularly towards the end of your relationship and later failed to account for the proceeds from sale of those assets.

We are often asked in these situations what the other partner may claim in a property settlement to recognise any wastage of assets by the former partner or to compensate that other partner in relation to a disposal of assets by the former partner.

This is an area of law which has been the subject of scrutiny in more recent years. In some previous cases, the Family Courts had taken an approach of  adding back into the asset pool in certain instances the value of assets which had been wasted or disposed of by the former partner and treating those notional assets as having been received by that former partner as part of his or her property settlement.  This had the effect, in appropriate circumstances, of treating assets which no longer existed as part of the asset pool available for division between parties.

However, a relatively recent decision of the High Court of Australia has again emphasised that property orders may only be made in relation to property which actually exists at the time that the orders are made.  Whilst wasted assets or assets which have been disposed of then may not be treated as part of the notional asset pool, the other party may claim an adjustment in his or her favour out of the existing asset pool on the ground that it is just and equitable in view of the conduct of the former partner.

It is not all losses flowing from investment decisions made by a party to a relationship that would justify an adjustment being made in favour of the other party. Losses as much as profits may arise from legitimate investment decisions made in the pursuit of matrimonial objectives.  For the losses to be considered as justifying an adjustment in favour of the other party out of the asset pool, the former partner would need to have been acting in a particular manner, for example, acting recklessly or negligently or with wanton disregard in dealing with the assets.

If you want to learn more about property settlements, click here. Or, contact our friendly staff today today to set up a consultation.