Property settlements can be complicated and intricate affairs.

Increasingly, individuals have financial structures that include companies, family trusts with corporate trustees, self managed super funds and share portfolios.

The existence of these kinds of arrangements pose numerous problems for the family lawyer when structuring a settlement, both in determining the exact legal ownership (and therefore rights and responsibilities) in respect to any particular asset and also identifying and where necessary determining specific tax implications and consequences that might be inherent but not be immediately obvious in respect to certain assets, particularly company or trust assets.

The starting point must be obtaining and reviewing independent evidence that confirms legal ownership, rights and responsibilities. Title searches for properties, ASIC searches for companies both in respect to the company itself as an entity and personal searches for the officeholders and members as individuals are a must together with review of recent financial statements and tax returns. The lawyer must have a detailed discussion with the client in respect to his or her business to understand what it does, how it operates, understand the unique difficulties it faces and any potential issues going forward.

With trusts, the trust deed and all amendments to it must be obtained and read to determine who has what rights and responsibilities within the trust, who has what beneficial entitlements.

Whilst this might appear to be an immediate call for significant documents that do not appear immediately relevant, one must understand the true structure of an asset pool before attempting to separate it otherwise assets might be retained that have inherent liabilities or debts attached or, indeed, they might be already owned by a separate entity (for example company) that is not a party to the proceedings and therefore against which any final settlement orders can not apply.

Many clients freely acknowledge that “the accountant set it all up and I’m not entirely sure how it all works”. It is for the experienced family law practitioner to understand how it is set up and how best then to separate it.