It’s a regular query of new client enquiries, seeking an asset in their own name to be excluded from the property pool, to be divided with their ex-partner.
In most cases in Australia, the Court (and lawyers negotiating a property settlement) look at the parties’ legal and equitable interests in property. This means that assets, liabilities and superannuation interests are included in the property pool even if only one person’s name appears on the ownership paperwork.
What is in the property pool?
The property pool generally includes all property in which either party has a legal or equitable interest, whether held:
- jointly;
- in a party’s sole name;
- through a company or Trust; and
- with third parties (where an interest can be shown).
Legal & equitable Interests
A legal interest is what the formal documents say. An equitable interest is about what is fair and recognised in equity, which is often based on contributions, arrangements or conduct of the parties.
Will assets in my name be excluded from my property settlement?
In short, the answer is likely to be ‘no’. Having an asset in your sole name may be relevant, though the Court will consider it when calculating the property pool. Consideration of the timing and how the spouse party acquired the asset will be important when advancing an argument about contributions towards the property pool. Generally, all assets are included despite the assets held in one person’s sole name noting:
- The asset may have been acquired during the relationship, and the asset was funded by matrimonial savings or joint efforts;
- The other party will likely have contributed either directly or indirectly. This may include making mortgage repayments, completing renovations, homemaker and parenting contributions or income being used to pay living expenses (which has allowed one party to pay for the asset); and / or
- The asset is effectively controlled or used by both parties.
Seek legal advice early
If you have a legal or equitable interest in any asset, liability or superannuation, it must be disclosed and considered in reaching a just and equitable outcome. Our team can help you understand what is included in your property pool, and how to approach negotiations with clarity. If you require assistance, please contact our office by phone on 02 4228 8048 or by email enquiries@marrfamilylawyers.com.au so that one of our solicitors can assist and provide you with tailored advice.