When a marriage or a de facto relationship breaks down, many experience disbelief, confusion and anxiousness. This is understandable and it may be hard to find the mental space to prepare the paperwork for the separation and divorce.

Furthermore, separating spouses may play hardball, refuse to provide their financial details, inflate liabilities or siphon off and hide their money. This can result in a drawn-out divorce process and be highly challenging. Unfortunately, a lack of preparation may have a negative impact as you may lack the necessary evidence to put your best case forward. Hence, to protect your interest and to reach a satisfactory outcome, it is vital where possible to be prepared before a separation is triggered or quickly after the breakup has occurred.

This article offers an insight of the actionable steps you can take to be prepared for the process of dividing the assets of the relationship with your spouse and for court action, if this is required to split the assets. These steps will help to reduce your legal costs in the divorce process.

1.Prepare a list of assets and liabilities

All assets of the parties whether held jointly or in the sole name of one spouse will fall in the pool of assets for division. This will include the portion of an asset held by a spouse with a third party such as a parent, sibling or business associate. Assets for division will cover bank accounts, real estate, shares, vehicles, superannuation, businesses and any other asset of value to the parties. Some assets are held in a company or trust structure. This often includes Self-Managed Superannuation Funds (SMSF) and trust or corporate structures to hold businesses and investments. As long as a spouse has an interest in the corporate or trust structure, it also falls within the pool for division.

Start by preparing a list setting out the description of the asset, the percentage each party holds in the asset and its estimated value. Prepare a similar list for the liabilities of the parties. Liabilities will include bank and personal loans, car financing, credit card debts, tax payable, business debts and any other liability incurred by one or both spouses.

The aim is to start a list and keep building the list as you acquire information of the assets and liabilities.

2.Gather financial records

Collating financial records is one of the hardest tasks in the divorce process. It requires organisation, persistence and stamina to gather documentary evidence of the assets and liabilities from various sources. Sometimes, one spouse manages the finances, and the other has limited knowledge of the assets. If this applies to you, it would be harder to access this information if you are separated and reside in separate premises. It is best that you begin preparation as soon as there is a possibility of a divorce. Gather all financial information and make photocopies or take photos of documents relating to the assets as the separating spouse who controls the asset may later block your access to such documents. The documents of both spouses that you will need to collate include:-

• Payslips, tax returns and assessments issued by the ATO.
• Superannuation statements.
• Bank account, term deposit and other investment statements.
• Shareholding statements in relation to any stocks and shares held.
• Mortgage and other loan statements.
• Credit card statements.
• If assets are held in a trust structure, the name of the trust and its Australian Business Number (ABN), the trust deed and documents relating to the assets held by the trust such as real estate, bank statements, and shareholding statements.
• If there is a corporate structure, the name of the corporation and its Australian Company Number (ACN), its annual financial statements and documents relating to the assets held by the corporation such as real estate, bank statements, and shareholding statements.

3.Make notes of your financial and non-financial contributions during the relationship

Under family law, when determining the share of the assets that each party is to retain upon the breakup, an important consideration is the contribution each party has made towards the acquisition and maintenance of the assets and the care of the family. Hence, make notes of your and spouse’s respective financial and non-financial contributions towards the relationship and provide these notes to your lawyer. Examples include: –

• The financial contributions you brought into the relationship when it started such as property, savings and shares. For example, you may have brought in a substantial amount of cash when you started to live with your spouse which later went towards payment of the current home. Locate the bank statements or any documentary evidence you may have to substantiate this contribution.
• The income you contributed towards meeting the household expenses and the mortgage or other outgoings of the property. Locate previous payslips and income tax returns evidencing your income as well as bank statements evidencing your payment of the mortgage, outgoings and other expenses of the relationship.
• Non-financial contributions such as the care of the household and/or children and the extent of each spouse’s contribution in these areas. Other non-financial contributions include providing unpaid assistance in a spouse’s business or using one’s efforts to carry out renovations to the home and thereby increasing its value.

4.Obtain initial legal advice

For costs or other reasons, you may not be sure of appointing a family lawyer to handle the whole of your matter. If you are undecided, it is still best that you get initial legal advice. Divorce and the splitting of assets can be a complex exercise. You would want to ensure that your interests are protected. Hence, it is essential that you seek legal advice and be informed of the law on how assets are divided and the possible outcomes for your matter.

5.Research financial options and seek financial advice

Research into the financial options available to you upon the division of the assets. For example, if you wish to retain the family home, seek advice from a mortgage broker on the loan amount that you can borrow from a bank. Alternatively, if the family home is to be sold, find out whether the payout from the split will enable you to buy a home in the area where you and the children may wish to live. Seek financial advice from a tax accountant and/or financial consultant when businesses and investments are to be split or sold as tax liabilities and other financial consequences may arise after the split has occurred.

6.Consider impact on children

Consider the impact of separation on the children and how their mental and emotional well-being can be supported. Consider also the financial consequences of the divorce on your children. Often as a result of the separation and running two separate households, finances are stretched and funds may not be available for the children’s health or other needs, private school fees or extra-curricular activities. Prioritise what is important to the children as that would be a major consideration in planning the division of assets.

7.Self-care and support

Undergoing separation, property division and managing the children’s well-being as a result of a divorce can be overwhelming. It is essential that you take time and effort for selfcare and consider whether you need to build a support group of family and/or friends and whether a family therapist or psychologist would be helpful for your well-being.

8.Appoint a capable and experienced family lawyer to represent you

Finally, consider the appointment of a lawyer to represent you in your family law matter. Family law deals with personal and sensitive matters that may impact your future life. While an individual can self-represent, an experienced and capable family lawyer is equipped to protect and advance your interests. It is important that you appoint a family lawyer that you are able to build a relationship of trust and confidence.

Contact us

For all enquiries on property division, children matters or divorce or any other family law matter, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiries@robertsonhayles.com or via our contact form on our website, and we will be happy to assist you with your family law matter.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.