Many couples separate on good terms, which is ideal. The breakdown of a relationship can be difficult, however putting differences aside to move forward can be beneficial, particularly where children are concerned.
Ex-partners who remain on good terms may choose to make informal arrangements regarding the division of their property. However, the failure to legally document a property settlement may be unwise, particularly where the parties have accumulated assets and/or liabilities, or where either had their own assets prior to the relationship.
In most cases, even if you are a ‘happily separated couple’, there are many reasons to seek independent advice and have your financial affairs legally finalised.
Stamp duty concessions
The transfer of certain property, particularly real estate, is generally liable to stamp duty. However, certain exemptions from duty may apply for transactions that are documented in a financial agreement or consent orders pursuant to the Family Law Act 1975 (Cth). The exemptions are reflected in stamp duty legislation across different jurisdictions in Australia and can result in substantial savings. An informal agreement generally does not meet the prescribed requirements to obtain these concessions.
Taxation implications
Understanding the tax implications of a proposed property settlement and structuring the division of assets accordingly can have a significant impact on the net result for both parties.
For example, Capital Gains Tax (CGT) is the financial gain made on the disposal of an asset. It is assessable income and must be included in a tax return.
Although the transfer of a matrimonial home between a separating couple does not generally attract CGT under the main residence exemption provisions, CGT liabilities may be triggered when transferring assets such as investment properties, collectables, and certain other personal items. The Income Tax Assessment Act 1997 (Cth) however provides roll-over relief pursuant to a financial agreement or consent orders made under the Family Law Act. This means that any CGT liability is deferred until such time as the asset is later transferred by the party acquiring it, although the asset will remain subject to the same CGT conditions as it was before the transfer.
A potential future CGT liability is an important consideration when negotiating a property settlement. Care should also be taken when dealing with companies and trusts where various transactions could raise CGT issues.
Although family lawyers do not provide financial advice, they can flag potential tax issues and recommend working with an accountant to ensure a property settlement delivers the most viable results and avoids, wherever possible, unexpected tax liabilities.
Claims on post-separation assets
An informal property settlement is not legally recognised as bringing the couples’ financial affairs to finality, even if negotiations have been put in writing. Not only is an informal agreement insufficient to obtain relief from stamp duty or relevant tax exemptions, but the parties may be unprotected against a range of potential issues down the track, such as a subsequent claim on post-separation assets, income, and inheritances. The parties may also be left vulnerable should one of them become bankrupt and the joint ownership of assets has not been severed.
Finalising your property division
Once separated parties have agreed on the division of assets and liabilities, and obtained independent legal and financial advice, the negotiations can be made legally binding through a financial agreement or by consent orders.
A financial agreement is a contract between the parties – each party has certain rights and responsibilities and must perform their obligations according to the terms of the agreement. Financial agreements are not approved or registered in Court.
Consent orders must be approved by a Court, although the parties to consent orders do not need to attend Court for the orders to be granted. Because consent orders must be approved by a Court, they may be considered a more formal way of finalising your property affairs than financial agreements.
Financial agreements or consent orders may provide for a range of matters concerning the division of assets and liabilities, including:
- the transfer of property from one party to the other;
- the payment of funds in exchange for the transfer of property;
- the sale of real estate or other property including terms regarding the appointment of an agent, method of valuation and distribution of surplus funds;
- the splitting of superannuation;
- requirements for paying out loans, credit cards and closing bank accounts;
- financial support (maintenance) of one spouse by the other; and
- any incidental issues.
Conclusion
Generally, family lawyers will support a reasonable agreement reached between a separated couple if the terms are just and equitable in the circumstances. In doing so, however, they will ensure their clients are aware of the implications of a proposed property settlement and address matters that may not have been contemplated between the parties. The negotiations can then be recorded in a legally binding agreement that meets the requirements for stamp duty concessions and, where relevant, tax relief.
This information is of a general nature only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 03 5021 4276 or email [email protected].