Family Law Property Division

Family
law property division

Family law property division is going to be important for you to address following separation from your former partner.  At LGM Family Law, our divorce lawyers Brisbane and North Brisbane divorce lawyers will often recommend that divorce is deferred until the family law property settlement is completed. Whether that is done will depend upon a person’s particular circumstances. Do be aware though that once you obtain a final divorce order, unless you make a legally binding family law property settlement within 12 months after the divorce order is made, you will need to start a legal action seeking final property orders before that 12 month period expires in order to keep alive any right to obtain property orders from the family court.

When
seeking a family law property division, sometimes one of the former partners
may be seeking that assets and liabilities be treated as two eparate pools. This
situation may arise where where one party claims that the other party did not make
any contribution to a particular asset or assets, for example, an inheritance.  

Contact our divorce lawyers Brisbane and North Brisbane divorce lawyers for advice regards the best strategy for you towards family law property division with your former partner. We have the experience to advise you in all areas of family law property division as well as regards child custody arrangements for your children. Otherwise, read on….

In the case of Lacey & Lacey (No.3) [2018] FCCA 1551, the Federal Circuit Court of Australia considered a claim for family law property division between parties who had been married for 37 years with 5 children. A property pool of some $10 million was involved, chiefly being a company that had been set up by the husband’s parents.

The husband was gifted a 25% share in the company before marriage and eventually received the balance of the shares in the company through  inheritance and a settlement with his sister.   The husband’s proposal that his contributions by way of gift and inheritance be treated in a manner so that the wife only received 17.5% of the net asset pool in a family law property division was rejected by the Court. The court found that a family law property division of 40/60 was just and equitable regards the contributions of the parties and that there were no future needs (or section 75(2)Family Law Act 1975 (Cth) factors that required any adjustment.  

The wife’s counsel had proposed that contributions be assessed globally to one pool of assets and he submitted that at a 40/60 assessment was appropriate.

The husband’s counsel argued for what is known as a separate pools approach. This proposal involved that the husband’s shares in the company had three distinct characters:

a)           A 25% shareholding which became a 33% shareholding in 2009 which was brought into the marriage by the husband;

b)           A 33.3% shareholding inherited by the husband upon his father’s death in 2004;

c)           A 33.3% shareholding inherited by the husband upon his mother’s death in 2014.

The husband proposed that the wife be treated in the family law property division as having some interest in the shareholding lots referred to in a) and b) but no interest in the 33.3% stake.

The Court said that it was permissible  to assess contributions on an asset by asset or separate pools basis to ensure that the importance of gifts or inheritances are not overlooked. 
The Court said that “the fact that the husband owned some Company A shares at the beginning and inherited others is a relevant consideration when it comes to assessing contributions but the shares the husband inherited cannot be quarantined as the husband’s counsel suggested; they were not shares in some separate business in which the husband had no involvement. The husband devoted all of his time and effort during the marriage to the conservation and improvement of [the company] as a whole”. The Court refused to  adopt the approach of two pools that the Husband proposed in the family law property division as to do so would be unjust to the wife.  

When you are considering family law property division, you should consider whether a global asset (one pool) approach or a two (or three!) pool approach is more appropriate. 

Contact our experienced divorce lawyers Brisbane and North Brisbane divorce lawyers  for advise tailored to your particular circumstances. We have the experience to assist you to resolve your family law issues, including family law property division and child custody arrangements.