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Trust Assets: In or Out?

The first step in implementing a Family Law property settlement following separation is to identify the asset pool available for distribution. Sometimes this is straight forward, sometimes it is not.

One common point of contention in this regard is whether a spouse’s beneficial interest in a discretionary trust should be treated as an asset, and therefore included in the matrimonial asset pool available for division, or whether the beneficial interest should be treated as a financial resource. If treated as a financial resource, the value of such interest does not hit the bottom line of the asset pool. This is not to say that it becomes irrelevant, rather it will be a factor which impacts on the just and equitable division of the (smaller) asset pool.

For example, the Husband may have a beneficial interest in a discretionary trust worth $500,000. The Husband and Wife own a home worth $1.5M, with a mortgage of $500,000. It the interest in the discretionary trust was treated as an asset, the net value of the asset pool would be $1.5M, whereas if it were treated as a financial resource, the net value of the asset pool would be $1M. In the first scenario, the Wife may be entitled to 40% of the larger asset pool, whereas in the second scenario she may be entitled to 50% of the smaller pool.

A key deciding factor as to whether an interest in a discretionary trust is an asset or financial resource is control. If the beneficiary has control over how and when the trust assets are distributed because they are also the trustee of the trust, chances are the interest in the trust will be treated as an asset. If the trustee of the discretionary trust is different and autonomous to the beneficiaries, a spouses interest in a discretionary trust will most likely be treated as a financial resource.

What constitutes a just and equitable division of the matrimonial asset pool will vary from case to case. Our team of lawyers are experienced and ready to assist you in what can be a foreign and challenging process.

Rebecca Harper

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boys playing on the beach

What is an Independent Children’s Lawyer?

Independent Children’s Lawyers (ICLs) are specialised legal practitioners who are appointed in some family law matters to represent children’s interests. This means that they look at all the evidence in the case and tell the court what they think is in the best interests of children. The ICL is not your child’s lawyer and whilst they will tell the court if your child has a particular wish, they do not have to do what your child says.

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christmas girl with present

Christmas 2015

Whilst Christmas time and the summer holidays is usually a time of celebration and time to spend with loved ones, unfortunately for some people it can be a time of sadness, reflection and dispute. For those people in an unhappy marriage or de facto relationship who are contemplating separation, or for those people who are separated and are unable to spend the time they wish with their children on Christmas Day and over the summer holiday period, Christmas can be a very trying time.

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For those seeking to have their family law matter dealt with by the Family Court at Sydney or the Federal Circuit Court at Sydney, there are currently huge delays.  There is simply an insufficient number of Judges to hear and properly deal with all of the matters in a timely manner.   Therefore, wherever possible, alternatives to litigation need to be sought in order to offer couples a quicker, less expensive and less stressful resolution to their family law matter.

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doolan callaghan relationships de facto

De Facto Relationships

Statistics show more and more people are living in de facto relationships. If such a relationship breaks down, the separating couple often wonder what laws apply to them in relation to dividing property and, if they have children, what laws apply with respect to the future arrangements for their children. Are the laws the same or different to those that apply to a married couple?

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coping with separation


For most people, separating from a former partner following a relationship breakdown is one of the most stressful things they will ever have to deal with. Every individual deals with it in his or her own way, however Psychologists and Psychiatrists will often refer to “the stages of grief” that many people go through following separation.

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