Our family home and business is in my husband’s sole name. Does this mean he gets the company and our family home during our separation and divorce because I don’t have legal ownership?
The legal ownership of assets is a relevant issue to take into account, but does not decide how that asset will be dealt with in the family law settlement for both married and de facto couples.
Family law takes into consideration all assets held by both parties or either of them, including the interest held by the party (or parties) in an asset which is held jointly with someone else (such as a family member or business partner).
The Australian Family Law Act 1975 details what must be taken into account when assessing a potential property settlement. This is supported by relevant case law. This process includes:
Upon undertaking this process, a lawyer is likely to advise you as to your range entitlements to the property pool post separation. The range you receive is likely to be expressed as a range of percentages. Based on this advice parties should consider how to split the assets and liabilities in the property pool. This does not mean that every asset is liquidated and proceeds split in the relevant percentages, but rather that assets are divided between the parties and often a cash adjustment is required.
A very simple example of this is:
It is necessary at an early stage of settlement discussions for parties to be aware of their borrowing capacity, and often will also require advice from their accountant about potential tax implications of various options. The transfer of the family home pursuant to orders or a Financial Agreement will be exempt from stamp duty.
For further information and to talk to an expert Family Lawyer call Sarah Bevan 02 9633 1088