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Appius Lawyers - Perth Lawyers

08 6181 0600

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Businesses & Complex Assets

  • Perth Separation, Divorce & Business Lawyers with legal experience to suit your needs
  • We are a full-service Perth Family Law firm

( 08 ) 6181 0600

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Separation, Divorce & Business Lawyers

Property Settlements when you own a business or complex assets

Whilst separation is difficult both emotionally and financially, owing a business and/or other complex financial arrangement will likely add further complexity to the process of dividing up of the matrimonial assets.  We will advise and ensure that at each step our clients are well-advised about the process whilst applying our knowledge of commercial law and family law.

Our family lawyers are commercially minded and work hard to resolve issues and provide pragmatic advice concerning your business and implications in a family law settlement.

Applying our skills in both in commercial law and family law,  we provide our clients with excellent outcomes. We ensure that not only your family law agreements are well drafted and negotiated but we can also assist with any commercial agreements and issues that arise during a family law settlement and beyond.

Overview of Family Law financial settlements with Businesses and Complex Assets

There are a variety of business structures such as partnerships, sole traders and companies. The type of business may impact and have different implications as to how the business may be treated in a family law settlement, the effects of a family law settlement on the business.

Careful legal planning for business owners and advice on your individual circumstances will lead to better outcome, particularly where the lawyers advising understand the process and commercial ramification for the business.

How is a business viewed in the Family Court

A business or business assets such as shares or family trusts may be considered by the Family Court to be property (or marital assets) within the meaning of the Family Law Act. Where the court determines that an asset in a trust or shares are marital assets, it will treat such assets in a similar way to the family home.

Once the court determines that it is just and equitable to cause and split of the marital assets, the court will generally follow the following steps in determining each party share of the matrimonial asset pool:

Property Pool

What the assets, liabilities, superannuation interests are.

Contributions from each party

Financial, non-financial and indirect contributions.

Future Needs

Age, health, financial resources, care of children and earning capacity etc.

Just and equitable settlement

All decisions at court must be just and equitable.

It is encouraged that parties attempt to resolve their dispute and separation amicably; either prior to commencing of any proceedings and during the proceedings. Majority of Family Law matters are in fact settled outside of court or prior to any final hearing. Where parties do reach such arrangement, either through formal or information negotiation, the agreement reached should always be finalised either by consent orders or a Binding Financial Agreement. The former being preferred both in terms of certainty that it will give to the parties, costs in most instances, and in terms of its enforceability.

How can we help?

We clearly understand the commercial and family law issues surrounding separation and divorce when you own a business.

Our family law team aims to provide the very best quality of work and professionalism. We are commercially minded and consider the commercial needs of our clients and their desired outcomes.

To speak to a lawyer to discuss your matter call us on 08 6181 0600 or otherwise complete our online enquiry form.
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Family Law financial settlements
with Businesses and Complex Assets
FAQ - Frequently Asked Questions

The Family Law Act will generally consider all business interests and structures such as family trusts, sole trader, partnerships and corporate and trust structures where a party has direct or indirect interest to be a part of the matrimonial asset pool.

To determine the value of any asset, the parties may either agree or where such agreement cannot be reached instruct experts to provide a value of the asset. This is more complex for business, than for say the family home; requiring proper instructions to any expert appointed and proper evaluation, consideration and review of the expert report.

Having lawyers that understand such matters and appreciate the importance of getting the process right, will assist will improve the outcome. This is done for instances by ensuring that all issues in the business or asset are given proper consideration by the valuer.

If one party is not forthwith with providing records, or proves to be difficult, we will seek the court’s intervention to ensure all records are properly presented in determining of the true value of assets particularly value of any business asset.

Being a Sole Trader is a typical business structure that a party may choose, when that person is the key person or only person conducting the business. The value of a sole trader’s business is often linked to the key person and certain criteria can impact the valuation of the business.

Our Family Lawyers understand the valuation process and appreciate that the process is key for parties that are seeking an accurate valuation for their business. We will make sure the relevant information, is considered carefully by the valuer.

If the business is a Pty Ltd or a publicly listed company then depending on the role and stakeholding of each party, the value assigned to such shares will differ and will impact the financial settlement.

A major reason to establish a Pty Ltd as the structure of a business is to protect the assets of the individual shareholders. Shares may be held for the benefit of an individual or beneficiary held for the benefit of a trust. The business is managed by a director or directors who may or may not be themselves shareholders of the company. At times it can be difficult to determine ownerships and rights of individuals in a company, and such rights restricted by shareholder agreements involving third parties.

The controlling mind of the company and ownership of the shares either legally or in equity, will impact who the court may deal with such assets. Our experience and knowledge of commercial corporate matters will shape our advice and assistance in such matters.  

A family trust, dependent on its terms may be considered part of an asset pool available for division between two parties.  In determining if a family trust falls within the asset, a major issue for the court is whether or not one or other of the parties has care and control of the trust. If they do then it is likely that the trust will be included in asset pool.

Where separation takes place, the parties are required to maintain and preserve the matrimonial assets, including any business. Where the parties are able to continue to cooperate in running and growth of the business, it is encouraged and should be continued, for the better financial outcome of both parties. Often your business is one of your largest assets.

Parties may also have duties to the business, where for instance is a corporate structure, in which case the duty may arise out of the  Corporations Act.

Getting an initial agreement on how the business is to continue to run and under what roles can be crucial to the smooth operation of the business. This will also minimise the impact of the family dispute on the business.

Such issues such as loans, overdrafts and any personal guarantees will need to be considered when separating or divorcing. Dealing with debts and ongoing liabilities can be complex.

Having a lawyer who understands the commercial elements of refinancing and restructuring can assist in this process.

If you are a business owner, we can advise and assist in and around asset protection of your business if you are contemplating entering into a de facto relationship or marriage, by way of a Binding Financial Agreement. This can provide you with certainty moving forward into a new relationship.

Why use Appius Lawyers Services?

Features benefits from Appius Lawyers

01

You Work Directly with A Solicitor

One of the primary benefits of hiring Appius Lawyers is that you’ll receive personalised service.

02

Expertise and Creative Solutions

Appius Lawyers is much smaller than the mega-firm, but we offer clients expertise and creative solutions at a cost that many larger firms simply can’t match.

03

More Flexibility with Fees

One of the top benefits of working with Appius Lawyers is having more flexibility when it comes to billing structure.

04

Small Business-Friendly

The great thing about working with Appius Lawyers is that we focus and take the time to learn your industry, to understand your business and what we can do to help it move forward.

Appius Lawyers
( 08 ) 6181 0600
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