Worried about the assets not being in your name? What we can do to help!

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Are you worried that you have no interest in real estate, superannuation or other assets because they are not held in your name? Well don’t be!

We want all our clients to know and understand that legal ownership of assets (and liabilities) is not the end of the matter – far from it! On the contrary, under sections 79 and 90SM of the Family Law Act 1975 respectively, the Court has the power to alter interests in property.

Sections 79 and 90SM of the Family Law Act 1975 are the main sections of the Actthat family law property settlement clients rely on when making an Application to the Court for a property settlement, and these are the sections of the Act that mean legal ownership of assets and liabilities will only very rarely be the end of the family law property settlement discussion.

Such arrangements may have been entered into because one party held the assets before the commencement of the relationship, for tax minimisation or estate planning purposes – or sometimes because one party to the relationship has been the primary family money manager, or solely run a business.

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Take Legal Advice Regarding A Property Settlement

Just because the asset is not in your name do not delay in taking legal advice regarding a property settlement and most certainly do not stay in an unhappy or unsafe relationship, because you fear being left homeless, or without resources to care for yourself, your children, or plan for your future. Instead seek URGENT legal advice. If the asset is not in your name, it is important to try and seek that the asset is not disposed of. For example, if the property is held in your spouse’s name only, it may be prudent that a caveat is lodged so that the property is not sold or so that the mortgage amount is not increased.

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Asset Pool Assumption and Reality

Alternatively, the person who legally owns the assets may think they also don’t need to take legal advice on a property settlement because the legal ownership means that they will solely retain all the assets and liabilities they have in their sole name, without any claim from the other party. This position is not a correct legal assumption! The Court of course looks to what is fair and equitable in an ultimate property settlement, however just because the asset is registered in one person’s name does not mean it is excluded from the asset pool.

Further, the Court also has the power to declare interests in property pursuant to sections 78 and 90SL of the Family Law Act 1975 – for married couples and de facto couples respectively. Further, the court even has the power under section 92(1) of the Act to join third parties to the proceedings – such as and to make Orders affecting the interests of third party creditors to the proceedings – such as banks, family members who have loaned money, or other creditors (even the trustee in bankruptcy!)

Need Consultation?

So if your concerns about the current legal ownership of assets and labilities are causing you to worry about applying for a property settlement, making you think you may not be entitled to a settlement, or causing you to presume you don’t need legal advice and representation because all the assets and liabilities are held by you – please call Argent Law today on 03 9571 7444 to make an appointment for a confidential discussion with one of our experienced and supportive family lawyers!


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