In the intricate landscape of separating couples, particularly in de facto or married relationships, the process of property settlement becomes a pivotal aspect. This legal procedure encompasses the division of assets, including business interests, trusts, and inheritances, between the involved parties.

A property settlement is required at the end of both a de facto relationship and marriage.

How are business assets divided after you separate?

A crucial early step in this property settlement process involves both partners providing ‘financial disclosure.’ This legal obligation mandates a transparent sharing of all financial information, encompassing business interests, acquired jointly or individually before and during the relationship.

For business owners entangled in this process, a meticulous valuation of their business interests is imperative. Whether one or both parties hold business stakes, a comprehensive evaluation is necessary. In cases where valuation accuracy is questioned, the intervention of a forensic accountant may be enlisted to validate the initial assessment.

Upon gaining a comprehensive understanding of the financial landscape, legal counsel can then provide an estimated range for the property settlement outcome, typically expressed as a percentage. The discretionary nature of settlements prevents lawyers from specifying an exact percentage, as court rulings, if required, remain uncertain. Out-of-court settlements usually revolve around negotiated outcomes within the provided framework.

Can you lose your business in a separation?

Despite the overall property split, the necessity to divide business assets hinges on the feasibility of funding the other party’s entitlement through alternative means. It is indeed possible for a business to be at risk during separation, and while there are protective measures available, the business may need to be sold to fulfill financial obligations.

The necessity to sell the business or its assets may arise if there are inadequate funds to meet the requirements of the property settlement agreement or a court ruling. Nevertheless, alternative solutions can frequently be discussed to minimize the likelihood of such a measure becoming imperative.

Can I sell my business before separation?

The question arises: Can one preemptively sell a business before separation? Technically, you can sell your business at any time. However, that will not disentitle your former partner or spouse to any of the proceeds of the sale. Consultation with both an accountant and lawyer is recommended before contemplating such a significant decision.

Are you the advantaged or disadvantaged party, or neither?

In situations where both parties have been involved in a business, the dynamics may designate one as the ‘advantaged party’ and the other as ‘disadvantaged.’ The disadvantaged party often grapples with understanding the intricacies of business operations, posing additional challenges during an emotionally charged separation.

One of the parties may face a disadvantage as, alongside the substantial emotional burden of separation, they may need to quickly familiarize themselves with the intricacies of the business’s profitability and operations. This process can be time-consuming. If the other party hesitates to disclose pertinent information, it further extends the duration and intensifies the stress. Such situations are often observed when one party has had a more substantial connection with the couple and/or business accountant.

Gather information as early as possible

To streamline the process, timely access to critical information is imperative. Parties involved in business should prioritise gathering data on:

  1. The financial position of each business; and
  2. How funds are being taken out of each business.

Where this information is not provided quickly and easily, seeking legal advice on the appropriate approach can facilitate quicker access.

Business financial position

Reviewing finances is not within the purview of your lawyer; it is the responsibility of you and your accountant to provide this information. For an accurate calculation of the property settlement range and the formulation of a structured settlement, some important information, as outlined below, is essential. 

  1. Existing Debts Information: Gather details on any existing debts associated with the business.
  2. Debt Management Strategies: Outline strategies employed for managing business debts effectively.
  3. Loan Servicing Details: Provide information on how loans related to the business are serviced.
  4. Rollover Period Awareness: Be aware of any impending rollover periods and their potential impact.
  5. Methods of Fund Withdrawal: Understand the various methods through which funds are withdrawn, including:
  • Wages
  • Director’s Loans
  • Dividends

Historically, measures have been taken to reduce overall tax liability for a business and its directors. But these strategies may no longer be advantageous for one party in the relationship. Instead, collaboratively, your lawyer and accountant can gather the necessary information to proactively identify potential risks and facilitate the progression of the property settlement process.

Separation and Being a Business Owner. Be Informed.

Separation and being a business owner entail complex decision-making. Whether you perceive yourself as an advantaged or disadvantaged party, seeking legal advice early in the process is crucial. A well-informed lawyer can identify potential issues, providing insights to facilitate better decisions. Careful selection of advisors and early intervention can significantly ease and expedite the separation and business ownership process, averting prolonged disputes down the line.

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