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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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1. Superannuation splitting, I separated close on 2 years ago

Customer Question

1. Superannuation splitting, I separated close on 2 years ago and just had my 22nd wedding anniversary.
I have $12,000 in an Australian super account (having lived here 10 years) and $16000 Australian equivalent in a UK fund.
My husband has approx $90,000 in an Australian super and $30,000 Australian equivalent in various UK super accounts.
What am I entitled to? Also rather than split his account can he give me the cash equivalent or I take it off the amount I owe him for the family home Here in australia which I am buying out his share.
2. Since separating, my ex has started a business which he has now informed me had setting up costs of $100,000. I have informed my ex that I am also liable for (50%) these debts even although separated we have not financially settled due selling our UK house. this settles this week. I am desperate to move on, but financial disclosure etc has not been a priority in my abusive/lying husbands life, he is very difficult.
(I am trying to keep things very simple and happy with the 60% on the 2 houses. I know he has undisclosed shares and savings but not sure on the above 2 questions)
Submitted: 2 years ago.
Category: Australia Law
Expert:  Patrick H. replied 2 years ago.
Hello and thank you for your question.Under Australian law - The Family Law Act, when you separate the combined asset pool should be split fairly having regard to the parties contributions to the relationship and asset pool, and then adjusting for various factors such as where one party has had or will have ongoing care of children of the relationship, or where one party has special needs arising out of health issues which impact on their ability to support themselves.The point is that there is no prescribed formula which specifies a percentage of each asset, rather the court works out an apportionment of the whole of the combined asset pool, and then assigns assets on a convenient basis to effect that apportionment. Accordingly, it is often the case that most assets remain with the party who initially was the legal owner, and only so much of the asset pool needs to be divided to achieve whatever the parties agree is fair. So in essence, I would suggest in dividing your property you work out the value of the total net asset pool (which does require disclosure of all assets by both parties), work out an agreed percentage split, and then assign the actual elements of the property to achieve that end. Assets like real estate are usually best assigned first since sharing ownership of such property will only either extend your financial entanglement or force the sale of the property which may have adverse tax consequences.Generally it is best to finalise the division using liquid assets like shares, since they can easily be converted to cash to make the final division so that the agreed percentage division is achieved exactly. Australian superannuation can also be divided in this way, but it is somewhat more complex than dividing shares, so may not be the first option to achieve a final division.It is also best to have the valuation of assets assessed with the assitance of an accountant, as some assets may have less than their face value because of tax implications, and indeed the values may be different for each party depending on their tax situation. For example, a property which is subject to significant Capital Gains Tax upon sale may be worth much less than its face value because it will incur a tax upon sale, and would be worth less to a party intending to liquidate, than to a party that intends to hold it (and therefore defer the relevant CGT. In a large and complex estate, taking such factors into account may add up to many tens of thousand's of dollars.Also be aware, that for most Australian jurisdictions, reassigning property between divorcing/separating spouses is exempt from stamp duty provided it is done in accordance with the Family Law Act, either by way of a Binding Financial Agreement or by way of a court order, so it is generally worth engaging a lawyer to ensure that any division is done this way. Indeed the cost of engaging a lawyer can be more than offset by the savings in Stamp Duty that are often achieved by use of a lawyer properly implementing the settlement.Only a UK lawyer or accountant can comment on the tax/duty implications on the UK property of a settlement, but if you are applying for a property settlement pursuant to Australian law, such assets do need to be taken into account in formulating a final settlement.Given the apparent size of your combined asset pool, and the complications of having assets in more than one jurisdiction, and therefore subject to different and potentially conflicting laws, I would strongly recommend you engage a lawyer to review your situation thoroughly before committing to any particular property settlement. I trust the above assists.Good luck and please rate my answer.Thanks,Patrick
Customer: replied 2 years ago.
I have skimmed your answer, I have been seperated 2 years and we have agreed financial splitting, so was asking specifically if he can pay me his super in cash rather than split it (and proportion I receive which you did answer).I also asked about the debt he has incurred since we separated if I am liable and I cannot see an answer. I know most of the other stuff that you sent brisbane Lawyer cleared all that up close on 2 years ago. sorry to have wasted your time and mine. I will try and get Brisbane lawyer again as I feel he answered my questions.
Expert:  Patrick H. replied 2 years ago.
Sorry if I dealt with issues that were previously dealt with by another lawyer, but I will try to assist you further.Superannuation cannot be paid out as cash except in special circumstances applicable for any early superannuation release, rather the superannuation just gets transferred into your own and becomes your own super.If a settlement has been formally agreed such that it is legally binding then no he cannot add any debts incurred subsequently, and instead will be solely responsible himself. If no settlement has actually been formalised, then legally it is simply a matter for you to negotiate whether such debts should be taken into account in your current settlement arrangements, although you would have a good logical reason for arguing that they should not be included.I trust this addresses your specific questions, but if you need further clarification, please ask and I will try to assist you further.Thanks,Patrick