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Property Settlement Help

Hi There,

We had a shortish marriage of 5 years, and my ex-spouse is apparently now wanting to do a property settlement (via legal aid who AFAIK don't even do property settlements) - all they have asked for is my super information so it seem's like a fishing expedition to see if I have anything worth going after.

Regarding financial contributions I made approximately 98% as I don't count FTB as a personal contribution on her part regardless of if she refers to it as 'my centrelink' or not.

Regarding assets there's no real property of value, only the minor asset type stuff which again was primarily all paid for by me (and she has possession of).

Regarding liabilities we only have 2 in joint names - one a vehicle loan which she has the vehicle and it won't be paid off for another 3+ years.. she apparently can't refinance to takeover the loan either.  All other liabilities despite being jointly accumulated on credit cards and prior vehicle loans they are all in my name.

I am a 50/50 director of a company too which had a P&L of $0 at time of separation and my children based legal aid lawyer informed me that it's the date of separation they go by however I have seen a few post's on here of people saying they used current dates?  Now that I have had time to focus we are starting to do well and would hate to have to give it a portion away to something she hasn't contributed towards.

So as an estimate I would say:

Personal financial contributions I made 98%.
Current asset possession despite me buying the majority I am in possession of around 27%.
Liabilities I am about 79%.

I do recognize that the mother/child carer does make contributions to the household but find it quite insulting they wish to initiate a property settlement going after my super while the current informal arrangement is already so one sided to her advantage (from my POV) and I chose not to persue it for lack of not wanting to spend money on a lawyer when I'm busy replacing nearly every household item she retained so I can have a life - however as I have quickly learnt with the children, ones POV and reality/the law are far from one in the same so I would greatly appreciate some advice on how the law differs from my personal POV.

Thank you in advance for any insight.
You need to get things sorted out sooner than later. A company valuation may be required. It is impossible to go through in a short post the vast range of check points that are worked through to calculate an end position. Super is the easiest as it is simply off a statement. The mothers earning potential and longevity in the work force, the number of children to support and where the children will be spending time as well a wide range of factors are considered. The best idea is to list all the assets, less debts and work out together a fair and reasonable split. Child Support if required is a separate issue as is spousal maintenance.

The Family Law Act has a range of sections that will set out what is required with Superannuation:

Part VIIIBSuperannuation interests
Division 1Preliminary
Subdivision AScope of this Part
90MA Object of this Part
90MB This Part overrides other laws, trust deeds etc.
90MC Extended meanings of matrimonial cause and de facto financial cause

Subdivision BInterpretation
90MD Definitions
90MDA Extended meaning of trustee
90ME Splittable payments
90MF Reversionary interest

Division 2Payment splitting or flagging by agreement
Subdivision ASuperannuation agreements
90MH Superannuation agreement to be included in financial agreement if about a marriage
90MHA Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship
Subdivision BPayment splitting 420
90MI Operative time for payment split
90MJ Payment split under superannuation agreement or flag lifting agreement

Subdivision CPayment flagging
90MK Operative time for payment flag
90ML Payment flag
90MLA Some splittable payments payable if payment flag operating
90MM Payment flag may be terminated by court
90MN Flag lifting agreement etc.

Subdivision DMiscellaneous
90MO Limitation on section 79 or 90SM order
90MP Separation declaration
90MQ Superannuation interests in excess of low rate cap amount
90MR Enforcement by court order

Division 3Payment splitting or flagging by court order
90MS Order under section 79 or 90SM may include orders in relation to superannuation interests
90MT Splitting order
90MU Flagging order
90MUA Some splittable payments may be made without leave of court

Division 4General provisions about payment splitting
90MV Court may cancel payment split
90MW Deductions from splittable payment before calculating payment split
90MX Multiple payment splits applying to the same splittable payment
90MY Fees payable to trustee
90MZ Superannuation preservation requirements
90MZA Waiver of rights under payment split
90MZB Trustee to provide information
90MZC Death of non-member spouse
Division 5Miscellaneous 439
90MZD Orders binding on trustee
90MZE Protection for trustee
90MZF Service of documents on trustee
90MZG False declarations
90MZH Terminating employment because of payment flag etc.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
90MI Operative time for payment split

(1) The operative time for a payment split under a superannuation agreement or flag lifting agreement is the beginning of the fourth business day after the day on which a copy of the agreement is served on the trustee, accompanied by:
(a) if the parties are divorceda copy of the divorce order that has terminated the marriage; and
(aa) if, in the case of a payment split under a superannuation agreement:
  (i) the parties are not divorced; and
  (ii) a separation declaration is not part of the superannuation agreement; a separation declaration; and
(b) if the agreement specifies a method for calculating a base amounta document setting out the amount calculated using that method; and
( c) if a form of declaration is prescribed for the purposes of this paragrapha declaration in that form.

Note: The base amount is used to calculate the entitlement of the non-member spouse under the regulations. (2) For the purposes of subsection (1), the separation declaration must have a declaration time that is not more than 28 days before the service on the trustee.

The agreement date is the date at which that parties signed the agreement and that is the date that the superannuation amount split amount is determined as the set amount.

The sooner you resolve an agreement the sooner the amount will be fixed and quarantined.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity

Thanks for your response.  I'm not actually worried about the super as I've always been self employed primarily often working for US based companies so between us there is less than what it will cost her in lawyers fees to get it.

While I am not really in a position to hire a lawyer at the moment (neither is she), my main concern is as I said she already has all the assets I bought, I'm paying for most of the liabilities already and days prior to separation she took most of the cash and transferred it to her own personal account so I hope to use these factors to sway the property settlement they are insisting on my way.  

I am thinking to start with responding for their request for super with a request for her past 5 years of tax returns (ie;majority $0) to establish her personal financial contributions, her own personal super balances from working 17+, her personal bank account balances at the date of separation (ie; she took the majority of cash 2-3 days before hand) and then list all the major assets which I purchased and she still has - I can provide buy prices and ask them for valuations.
Did you as a couple choose for her to stay home with the child/ren?

"When we long for life without difficulties, remind us that oaks grow strong in contrary winds and diamonds are made under pressure"
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