The definition of “property” in the context of a property settlement in Australia is outlined in section 4 of the Family Law Act 1975 (“FLA”). It defines the “property" as:
(a) in relation to the parties to a marriage or either of them--means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or
(b) in relation to the parties to a de facto relationship or either of them--means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
The property pool that is considered available for division between separated couples usually includes assets such as cash in bank accounts, real properties, shares, investments, superannuation, motor vehicles, furniture, jewelry, business interests, etc.
While the definition of financial resources differs from assets when considering a property settlement, the FLA does not provide a specific definition for it. In the High Court case of Hall & Hall [2016] HCA 23 defined a financial resource as “a source of financial support which a party can reasonably suspect to be available to him or her to supply a financial need or deficiency”.
A financial resource may have the potential to generate future income or to give access to capital, which may not be immediately divisible but can influence the financial situation of a party in the future.
The Court may take into account financial resources of the parties and may adjust the division of the property pool having regard to those financial resources. Such adjustments will usually be based on the future needs of each party, ensuring a fair distribution that accounts for both current assets and future financial prospects.
Financial resources may include:
Future Inheritances: Expecting to receive an inheritance even if not in the near future, can still be considered a potential financial resource. It can significantly impact a party's future financial security/position.
Trust Beneficiaries: Interests in trusts, especially where an individual is a discretionary beneficiary, may not provide immediate financial benefits but can be regarded as a potential future income stream or cash flow, depending on what has happened in the past.
Superannuation Interests: A superannuation interest is generally treated as property and can be available for spitting if necessary. However, the defined benefit superannuation schemes, known for their (at times, generous) pension phase, may generate significant income for one party upon retirement. Therefore, this entitlement is considered more as a valuable financial resource than mere property, especially in the long term. Consideration must be given to the nature of the interest at the time (i.e. whether it is in the growth phase or payment phase).
Employment Leave: Significant periods of leave, such as long service leave may be seen as financial resources. This perspective was supported by Baker J in the Whitehead case (1979), where it was concluded that accrued long-service leave entitlements constitute a financial resource rather than an asset.
Pending Legal Claims: An anticipated payout from litigation, such as a personal injury claim or other litigation where a financial settlement is expected, are likely to be included as they represent a future financial benefit.
Loan Repayments: The expected repayment of loans owed to an individual can improve their financial position once received, and therefore be taken into account.
Business Goodwill: The value associated with a business’s reputation and client relationships, particularly if it could generate financial gain beyond tangible assets, can also be considered as a financial resource.
Tax Losses: Tax losses that can be used to offset future taxable income, therefore improving financial status, can also be seen as a financial resource.
Support from Family Members: Regular or reliable financial support or expected support from family members, while not a formal asset, can be considered a financial resource due to its potential effect on an individual's financial position.
In summary, the consideration of relevant financial resources is essential for achieving a fair and equitable property settlement when negotiating a property settlement with a former spouse. The identification of these resources is important and should not be overlooked.
If you are exploring a property settlement and you need family law advice it is beneficial to see a specialist. To make an appointment with a member of our team please contact us today at (02) 6225 7040 or by email info@rmfamilylaw.com.au.