FACTS & FIGURES
OH BUOY
Who gets to keep the boat in the event of a separation or divorce?
WORDS SARRA DAVIES DESPITE THE INTENTION to sail away in the sunset, sometimes the inevitable reality of a relationship is separation, and alas stormy seas may follow. So, 'yacht' exactly happens and who gets to keep the boat to navigate the choppy aftermath of separation? The first step in a property settlement is to identify and value all of the assets, liabilities and financial resources that are owned by you and your former co-captain, aka spouse (in sole and joint names). This is called the ‘asset pool’ and includes everything from the boat to your long-lost aunt’s vintage vase inherited all those years ago. Identifying the asset pool is often achieved through the process of disclosure, where parties exchange all financial information in their possession such as bank statements, tax returns, valuations, and superannuation member statements. The next step is to assess the contributions made by the parties at each stage of the relationship.
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This includes financial and non-financial contributions (either direct or indirect), and contributions to the welfare of the crew, aka family (such as homemaker or parenting contributions). So, whilst the Court will consider the financial contribution of the party who purchased the boat, the Court will also assess the non-financial contribution of the party who scraped the barnacles off the bottom. In weighing up those various contributions, one party may receive credit for or an adjustment in their favour. After the contributions are assessed (taking into account contributions made at the commencement of the relationship, throughout the relationship and in some circumstances, post-separation), the next step is to determine each party’s respective future needs. For example, one party may receive an adjustment in their favour for having the primary care of the children post separation, thereby limiting their income earning capacity.
Oh Ship! Do I need to sell the boat? The final step is to determine if the property settlement is ‘just and equitable’. That is lawyer lingo for a fair outcome. The Court will ordinarily ensure that there is a balance between superannuation and non-superannuation assets. By way of example, if you are entitled to 60 per cent of the net asset pool, then your entitlement could comprise the boat, superannuation, and other assets/funds to make up that percentage. The manner in which the items of property are divided between the parties and the timing in which you might receive the property varies case by case. If you have recently separated and need assistance in navigating your property settlement and financial matters, the friendly crew at BGM Family Lawyers are on deck to answer any questions.
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