Complex Financial Structures

Going to court or litigation is usually the last resort. Most people try to settle their dispute using other methods first.

Litigation is usually financially and emotionally burdensome, time-consuming and involves lengthy delays. The court controls the process and a court ordered outcome may not suit any of the parties.

There are situations where applying to the court is the only option.

These include:

• child removed from Australia or moved a considerable distance away or a threat of one of these
• money removed from bank account
• urgent need for a mortgage to be paid

Trusts

Discretionary trusts (family trusts) and, to a lesser extent, unit trusts are frequently considered in property settlement proceedings.

Discretionary trusts can be relevant in family law property settlements if the trust is controlled by a spouse either as trustee or appointor, or the spouse is a beneficiary. If a spouse controls a trust by having the power to appoint the trustee, the assets of the trust are usually considered to be “property of the parties” and available for distribution between the parties. The interest of a beneficiary in a trust may be property or a financial resources, depending upon the circumstances.

Unit trusts are easier to take into account than discretionary trusts, as the control and beneficial entitlements are usually more transparent.

What is a trust?

A trust is an arrangement in which a person or company acts as a trustee and is the nominal owner holding the property in the trustee’s name for the benefit of one or more beneficiaries.

A trust is not a separate legal entity like a person or a company. A trust cannot sue or be sued – the trustee of the trust is joined to the proceedings. Transactions are legally conducted by, and in the name of, the trustee.   In Victoria, the trustee of a trust is the registered proprietor of real estate. It is not apparent from a title search that there is a trust involved.

What can a Family Law Court do with a trust?

There are two ways in which a Family Law Court can have power to treat the assets of the trust (or part of them). The first way, looks at the control and distributions. The second way is by making orders and injunctions under Part VIIIA Family Law Act.

Whether property in a discretionary trust is considered property to be divided between separating spouses is a broad question which usually involves considering a number of factors.

The courts can alter the interests of the parties in a trust in the control of a party which is found to be property.

There are many traps when dealing with trusts, such as whether a trustee of a trust should be joined to the proceedings, protecting the outgoing spouse, avoiding a re-settlement of the trust and maintaining a trust’s status as a “family trust” for ATO purposes.

We can alert you to the issues and refer you to appropriate taxation or accounting advice and ensure that the documents which finalise your property settlement protect you so that there are not unexpected consequences later.

Companies

Some of the same issues arise with companies as with trusts although usually the control of a company is more obvious. Areas of difficulty include valuations, Division 7A loan issues, directors’ duties, valuation of minority interests and transfer of assets to ensure capital gains tax rollover relief.

Partnerships

Partnerships may be subject to a deed or may be more informal. Either way, there may be issues as to which spouse keeps a business operated by a partnership and whether the partnership structure is maintained.