Following on from my colleague’s article “What Do You Mean It’s Not Mine?”, I have reflected upon one of the more basic, yet most important, question in family law property settlement – what makes up the net asset pool?
Simply stated, the net asset pool is all of the parties’ assets minus their liabilities.
That sounds simple enough, but what exactly is an asset, a liability, or a financial resource, is sometimes not so simple.
Identifying and Valuing the Net Asset Pool
The asset pool includes assets which are:
- owned by either party prior to the marriage;
- accumulated during the marriage; and
- acquired post separation.
The Family Court can deal with an asset which is:
- registered in the sole name of a party;
- registered in joint names; and/or
- registered in the name of a company or trust which a party controls or in which a party has an interest.
The Court also has regard to the financial resources of a party, such as any benefits which may flow to a party from a trust.
There are often disputes between parties as to:
- the value of assets; and/or
- assets which may have been dissipated either before or after separation.
The Court recognises the concept of an “add-back” or “notional property”. This means that the Court can “add-back” into the net asset pool those assets which:
- formed part of the asset pool but have been spent (for example, funds in a joint account spent on a party’s legal costs);
- have been gifted to a third party;
- have been recklessly wasted by one of the parties (for example, gambling or extravagant expenditure); and/or
- have not been disclosed or are unaccounted for.
In determining the net asset pool, it is necessary to consider any contingent or latent tax liabilities which may arise upon the division or transfer of assets. Transfers of assets between parties, pursuant to orders of the Family Court are normally exempt from stamp duty and parties can claim capital gains tax rollover relief. However, where other assets are transferred, such as sale or transfer of shareholdings, or superannuation splits, different considerations may apply. Parties should obtain independent financial or accounting advice in relation to these matters.
The relevant date for the determination of the net asset pool is the date when the Court hears the application. If parties negotiate a settlement, the appropriate valuation date will be at the time of a settlement. Many litigants do not appreciate that assets acquired pre-marriage or post separation can also be brought to account by the Court.
What is an Asset for the Purposes of Property Settlement?
Some of the more common assets are
- personal property (artwork, jewellery, furniture, antiques and personal possessions of value)
- shareholdings in publicly listed or private companies
- superannuation (save and except in de facto property cases in Western Australia)
The following may also be deemed an asset of a relationship
- interest in a partnership, franchise or other business
- property held overseas or interstate
- surrender value of a life insurance policy
- lump sum redundancy/long service leave payments, provided they have already been received
- lotto winnings or other windfalls (such as insurance payments and inheritances in certain circumstances)
- contingent assets such as loan accounts in family trusts
- vested interest in an estate, such as a life interest in property
- water rights for rural properties
The assets taken into account by the Family Court include those owned by either party prior to the marriage, accumulated during the marriage or acquired post separation.
The Court also has regard to the resources of a party, which may include the following
- benefits which may flow from family or discretionary trust or other entity
- benefits received as a company director (company car, computer, phone)
- inheritance shortly to be received
- superannuation (in de facto property cases in Western Australia)
What is a Liability for the Purposes of Property Settlement?
Some of the more common liabilities are
- personal loans (car loans and hire purchase leases)
The following may also be deemed a liability of the relationship
- current outstanding taxation liabilities including income tax liabilities and capital gains tax
- tax liabilities which may arise upon the division or transfer of assets
- capital gains tax to be incurred from the sale of a property or shareholdings
- monies owed to family entities
Ultimately what forms part of the net asset pool varies on a case by case basis. A careful analysis of your financial position is prudent. You may also need to speak with your accountant to help you prepare a schedule of your assets and liabilities.