Session 1: Mind the Tax on the Way Out: Tax and Family Law Property Settlements

The increasing financial complexities of business and holding assets directly impacts family law settlements as parties seek to unravel their arrangements. This session will provide a clear guide to family lawyers on tax implications of property settlements, including:

• Asset identification and potential impacts
• Factoring in both immediate and longer-term implications
• Capital gains tax obligations and exemptions – obtaining the best outcomes for your client
• Party interests in trusts and companies – what tax considerations apply?
• Options and consequences where one party has potential tax advantages
• Avoiding resettlement consequences in trust amendments
• Share and asset transfers in companies – determining best strategies
• Factoring in Division 7A implications

Session 2: Unravelling Trusts for Family Lawyers

The increasing use of family trusts for distribution of income has had significant consequences, with the courts more regularly having to consider trusts in property settlements. This session will provide practitioners with guidance on key elements in family trust arrangements and the risks of improper behaviour by trustees and beneficiaries, including:

• Basic trust principles and what to look for in the trust deed
• What the financial statements and returns of the trust will tell you
• Is it an asset or a financial resource? In what circumstances does the court have the power to deal with the trust assets
• Who controls the trust assets?
• Key issues in control including:
  • Distinguishing legal control and effective control
  • Sham trusts and mere puppets
  • De facto control
• When can the court restrain a person from acting against the interests of a beneficiary?
• What can be done when a trustee is not a party to the marriage but may lack independence?
• Should the trustee be joined as a party to the dispute?
• What is the ability of the court to make orders in relation to third parties?
• Relevant cases and examples

Session 3: Going for Broke: What Family Lawyers Need to Know about Insolvency

It is increasingly common for one or both spouse parties in property settlement proceedings to be directors of a corporate entity – whether it be a ‘mum and dad’ family business or a multi-million dollar empire. A breakdown in the relationship of the parties can have a significant impact on the financial viability of the business (whether intentional or inadvertent), yet the law of insolvency remains a mystery for many family law practitioners. This session aims to demystify insolvency law for family lawyers and will explore the following:

• The law of insolvent trading - the duty of directors, position of ASIC, potential defences and consequences of insolvent trading
• The impact of insolvency on the asset pool:
  • Balancing the interests of the non-bankrupt spouse and creditors
  • What orders can be made in respect of property?
  • Treatment of loan accounts
• Practical steps family lawyers can take if acting for a spouse party director where the other spouse party director is the ‘driving force’ of the entity
•  When specialist advice or assistance is required - when urgent action is required and when an entity may require separate representation and/or advice
• Case studies and worked examples