the court has some far-reaching powers when it comes to property orders.
It may order the transfer of the property to either party or to a child from the marriage. It can also order the payment of money to either party or a child. Where there is bankruptcy the court can order that the property is transferred to the other partner or the child.
Considerations in making property orders
The court must take into consideration several aspects before changing property rights. It must first and foremost consider the justice in making the order.
It will consider all assets and liabilities of the partners including those made post-separation
It will consider all financial and non-financial contributions along with who made them
It will consider the future financial needs of the parties, taking account of their earning ability and their responsibilities
Calculating net assets
Calculating net assets after a long marriage is often a lot more complicated than it would seem. This is particularly true when there are family businesses or several properties involved. There are often problems where the partners cannot reach agreement on the value of assets or on the ownership thereof. Working through company finances, bank accounts and trust funds can get very complex and lead to many disagreements.
Sometimes there are cases where one of the parties has sold a property without the knowledge of the other. This being the case the court can remedy any losses made by the innocent party.
Each party has a Duty of Disclosure and must disclose what they own. A lawyer may search property registers, share registers and such to ensure that all is above board.
It is not uncommon for one partner to attempt to hide from the court wealth and property to which they have a claim. A diligent lawyer with all the documents at his or her disposal can track these down.
If you, as partners, cannot agree on the value of your property, it would pay you to get a third party to value it on your behalf. The costs of doing this before getting your lawyers involved will be considerably less than arguments conducted through your lawyers. An estate agent’s valuation of your property used as a guideline can help to avert disagreements when the settlement is finalised.
Once a separation agreement reaches litigation only the expert opinion of a person trained in such matters is accepted by the courts as proof of value. This is despite the fact that market appraisals are acceptable during mediation.
Sometimes partners can’t even agree on which valuer to use. The best way to sort this out is to use a panel approach. Under this approach, one partner submits a panel of three evaluators and the other has a week to accept one of them. Failing this the first party can make the choice. You can save time and money by coming to an agreement on an outside valuation, rather than depending on the court to make an order.
Family lawyers prefer to work with clear balance sheets where the assets that have been properly valued by professional evaluators. This just makes it so much easier to settle on an amount that the courts will accept. It matters not in whose name the assets are registered they will be shared. Unless the assets were brought into the marriage and were excluded in a prenuptial agreement. This is, however, seldom the case.
Any assets bought, inherited or received during the marriage, and in some cases prior to the marriage, will go into the shared pool and will be split. You must tell your lawyer about every asset that either of you owns. This includes jewellery, boats, cars, shares, tools and household equipment belonging to both you and your partner. Even gifts exchanged between partners become part of the pool on separation.
Assets that were received by way of an inheritance or after the separation took place may be excluded, but the courts will still take account of them.
Unless you own antiques or collectables, household goods and even jewellery is not worth much. It is therefore in your interests to declare everything and put it into the asset pool.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.