What is the Asset Pool?
The Asset Pool comprises all the resources amassed by a couple throughout their marriage or defacto relationship.
It encompasses everything that is owned by the couple collectively AND individually.
Just as an individual has a ‘net worth’ of all their assets, the Asset Pool is the same for a couple.
What Are Defined as “Assets”?
In a family law settlement, assets are defined very broadly to encompass everything owned by each individual to the relationship, as well as the couple (or ‘family unit’) collectively.
Essentially, assets encompass anything you own that can be converted into cash.
This can include, but is not limited to:
- The family home
- Investment properties
- Any properties that either of you own individually
- Any investments
- Cash and Bank balances – personal and joint accounts
- Receivable loans
- Assets that are located overseas
- And more
What About Debts and Liabilities?
While assets are the things you own, debts and liabilities are what you owe.
Debts and liabilities are also counted in the asset pool, but will be marked as having a negative value.
Put simply, the value of the assets are added up, and then liabilities are subtracted from the total to give the net size of the asset pool.
Debts and liabilities can include:
- Credit card balances
- any financial obligations.
What Will Be Included in the Asset Pool?
In most cases, it includes all assets and debts acquired during a marriage or a de facto relationship.
This means that assets acquired individually during the relationship could be considered part of the asset pool.
The asset pool is assessed at the time of the property settlement – not at the time of separation. This means that any change to the assets leading up to the property settlement may have an effect on the asset pool. For example, a car purchased after separation could deplete the availability of cash in a savings account; spending money on holidays could also have the same effect.
There are instances where the negative value of liabilities outweighs the value of assets. These are known as “Negative property pools”. In this type of scenario, the property settlement process is concerned with how to proportion debts between the ex-partners.
When it comes to the asset pool, both assets and debts play a pivotal role in determining one’s financial standing.
Gifts and Loans
When money is provided as a gift, it implies that there is no anticipation of the recipient needing to reimburse the amount. These gifted funds will be regarded as jointly owned by both you and your former spouse or partner. Typically, they are considered a contribution made by one of the individuals involved in the relationship.
Loans are typically considered as assets within the context of legal proceedings, and the Courts have the authority to determine whether one party or both parties are responsible for repaying the loan as part of the property settlement.
In the process of apportioning the loan debt between the involved parties, the Court will consider the following inquiries:
- The timeline of when the loan was obtained, whether it was acquired before, during, or after the relationship.
- The recipient of the loan among the parties.
- Whether either party was making payments towards the loan during the course of the relationship (if such repayments were made).
- The magnitude of the loan and its impact on the overall value of the asset pool.
The overarching guideline is that assets obtained by either partner before, during, and occasionally after marriage can be included in the asset pool. However sometimes inheritances received by one partner may be treated differently.
In certain circumstances, an inheritance is recognized as the exclusive and distinct property of the receiving spouse, and isn’t automatically subject to division between both parties.
Consequently, if you happen to receive an inheritance before or during your marriage, there might be a potential avenue to shield it from inclusion in the divorce settlement.
Companies and Trusts
Interest in a business or company can be regarded as an asset subject to division during a divorce or property settlement.
The specific business structure, whether it’s a partnership, sole proprietorship, or company, is inconsequential; what matters is recognizing that any interest in a business is an asset.
Therefore, it is essential to assess and assign a value to this interest as it contributes to the overall property pool.
The way that a business is divided will be affected by the specific type of business structure that is used.
For a business operating as a sole trader, as the business’s value centres on the owner’s skills and reputation. Typically, it remains with the skilled spouse.
In spouse partnerships, typically one will buy out the other.
For Pty Ltd companies, treatment varies by family or third-party shareholders. In the latter case, share value affects property pool inclusion and company fate, depending on its unique structure.
There are many different ways to value a business. See our article here about how a business should be valued in family law proceedings.
What if a Property or Asset Is Only in One Person’s Name?
Even if an asset is owned under one person’s name, it will still be considered a joint asset if it has been used for the benefit of the relationship.
Assets or debts held solely in one person’s name will be included in the property pool, even if the other party was unaware or uninvolved in obtaining or managing them. In cases of disagreement about asset inclusion, the Court will make the final determination.
Do I Need to Tell My Partner About All My Assets (and Debts)?
In all family law proceedings, all parties are obligated to offer complete and transparent disclosure.
This means both partners must reveal all their assets, debts, and financial interests to ensure an equitable distribution of assets.
This entails sharing all financial documents, such as bank statements, tax returns, financial statements for any entities, and payslips, with the other party.
Failure to meet this requirement can adversely affect the outcome of their property settlement.
What If You Don’t Know About All Your Partner’s Assets?
Concealing assets is a common concern for our clients during separation and divorce.
In some cases, separating couples make significant efforts to hide income, assets, and superannuation from their ex-partners.
Hiding assets can be done in a multitude of ways, for example:
- Secret bank accounts
- Extensive dealings in cash that makes it difficult to identify
- Transferring assets or money to friends or a new partner
- Reducing business income to minimise available cash.
Searches That Can Be Done to Identify All Assets
Various searches, such as property title searches and financial institution inquiries, can help uncover hidden assets and liabilities.
Some ways to get a far more comprehensive view:
- Title searches
- ASIC searches
- File subpoenas
- Obtain an Anton Pillar order
- Use a private investigator
- Use a forensic accountant
- Apply for superannuation information
How Are Assets Valued?
Couples may possess a wide range of assets, such as unit trust holdings, crypto, motorbikes, racehorses, or gold and silver bullion.
In the absence of an agreement, the valuation of all assets is essential to conclude a family law claim, and there are specialised appraisers available for nearly every situation.
Valuation of Properties
Usually, parties begin by seeking an appraisal from a real estate agent to assess the value of their home or investment property.
These appraisals are estimates based on the agent’s recent sales expertise and are often provided at no cost.
Alternatively, parties can opt for a valuation by a qualified property appraiser who generates a comprehensive report using their specialised knowledge, experience, and training. In cases under legal dispute, the court usually relies on expert testimony to ascertain the property’s value. The expense of a real estate valuation typically falls within the range of $700 to $1500 per property.
How Are Family Trusts Treated in the Asset Pool?
A prevalent misunderstanding is that a family trust can shield assets from divorce and property settlement proceedings.
However, if the court determines that the family trust is part of the asset pool, it can mandate the trustee to allocate capital or income to the involved parties or set a vesting date when the trust’s assets will be divided between the couple.
What Is a Balance Sheet?
A balance sheet is a comprehensive record of the assets and liabilities owned by the separated individuals – all laid out in a simple spreadsheet.
The balance sheet will encompass factors such as add-backs, financial resources, and superannuation.
The primary objective of a balance sheet is to compute the combined net asset pool of the involved parties while guaranteeing complete disclosure of all assets and liabilities.
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