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Family Trusts – How are they treated in family law property settlements

Family Trusts have often been used as an effective means of protecting assets from creditors and implementing tax minimisation strategies.

Following separation, issues can arise as to how the trust is treated for the purposes of a family law property settlement.

When considering an application for property settlement the court has a wide discretion to make any order it considers just and equitable, having regard to several factors including financial and non-financial contributions.

To assess these matters the Court firstly needs to establish what the assets of the parties actually are and what property is available for distribution between them. This task can often be made more difficult where there are family trusts involved.

A family trust will be considered property for the purposes of a family law property settlement. The court has the power to look into the trust and determine what are the assets of the trust that may be available for distribution between the parties.

When examining a trust, it is important to consider:

  • the terms of any trust deed – who is the appointor or principal of the trust, who is the trustees and beneficiaries;
  • where the trustee is a company, who has control of that company?
  • what exactly are the assets of the trust and how were they acquired and financed.

It is therefore important to ensure that full and frank disclosure has been made and that the trust deed and all associated documentation is obtained in relation to any interest the parties or a party have in relation to a trust.

It is difficult to quarantine a family trust from a property division. Even where attempts have been made to move assets around or change the trust arrangements the court will have the power to consider who ultimately has or has had the control of the trust and who is to benefit from that trust.

For example where a Husband is the director of a corporate trustee and is also the appointor and beneficiary of the trust his interest is likely to be considered property. If, however, the Husband together with his father were directors of a corporate trustee and the Husband’s father was the appointor, it may be that any property of the trust is not classified as property of the Husband.

If you require assistance with a property settlement matter, please contact our experienced family lawyers cairns team today.

News

‘Me too’ Campaign: Women across the world share experiences of sexual assault and harassment following Harvey Weinstein scandal

Something a little different from me. While I usually like to stick to book reviews, family life, DIY, I had to comment on a recent event.

The Harvey Weinstein Scandal is one of the biggest sexual abuse scandals to have ever hit Hollywood. With the cases of Bill Cosby causing concern, the outrage that has come with Harvey Weinstein is bigger, giving the voiceless a chance to come out. With cases of sexual assault coming up once in a while, more cases are usually kept silent as most victims are victimized by their abusers. However with the film industry involved this time with known women who are respected by many as victims, the ‘Me too’ sexual abuse campaign has been born.
The ‘Me too’ campaign which is primarily on social media has raised awareness of sexual abuse all round the world. With twitter having the post being re-posted millions of times, the #metoo is not ending anytime soon. However Facebook offering more characters for its users to write, everyone is giving a listening year by users. This way all victims who have never had a chance to voice their sexual assault experiences get the opportunity to detail their worst nightmares.
The sexual abuse campaign grew even bigger with actress Alyssa Milano posting the Me too campaign from twitter, promoting it on Facebook, as was suggested in the light of Harvey Weisteins sexual assault behavior coming to light. In the twitter post it stated “ By offering a platform to all victims, we are giving people a sense of magnitude of how big the problem is”. To make the sexual abuse campaign bigger men actors have also given heir voice, with the likes of Javier Munoz saying “ If you have ever been sexually harassed/assaulted use ‘Me Too’. “
Alyssa Milano who stars in “Charmed” with Rose McGowan, one of the alleged victims of rape spoke up on a personal level, disgracing the film producer that have mounted against Weistein. In a blog she stated “ I am angered and sickened by the sexual assault accusations levied against Weinstein. Using his position and coming up as a sexual predator due to his power is just disturbing. However I am happy and ecstatic that this has given way, for talk about sexual harassment to be discussed in the public”.
With a number of celebrities joining the sexual abuse campaign, police have officially opened investigations against Weinstein both in the USA and UK. Still with actresses such as Lysette Anthony, Lucia Evans and Asia Argento coming out saying they have been raped by the bigwig Hollywood producer, some truths have come out even with Harvey Weinsteins continued denial. With bigger names such as Gwyneth Paltrow, Angelina Jolie and Kate Beckinsale stating they have been sexually harassed by the producer, the “me too” campaign has shown that it can happen to anyone. However with well known actresses getting their voices, it has come out that Harvey Winstein has reached an out of court settlement with up to 8 women in the last month alone. Still Harvey remains adamant of his actions, stating that he has never had any sexual relations with any woman without consent.
All in all with one of the biggest names in the film industry now exposed, the ‘me too’ sexual abuse campaign is giving confidence to all women around the world, to no longer fear and remain silent.