How To Lose The Family Farm : Trusts & Divorce
When a marriage or de-facto relationship breaks down, we are usually asked to investigate family businesses such as farms which are operated through Family Trusts and Partnership Arrangements.
Generational farming families have frequently set up Family Trusts to hold the real estate the farm is operated on.
The Family Court is not shy in pulling apart Family Trusts if one can successfully argue a party to the marriage or relationship has ever had control of the trust.
When investigating trusts, it is crucial to carefully read all of the Trust Deeds and any Deeds of Adaptation or Amendments.
A key issue is that of control.
The control is not only current control but also historical control. That is, has one party divested themselves of control at a time where there was disharmony in their relationship?
In certain circumstances, the Family Court has the power to set aside transactions which have the effect of defeating a partys claim. As an example, if the man has removed himself from control over the Family Trust, the Family Court can put him back in control. When that occurs, the assets of the Family Trust may become part of the asset pool available for division between the parties.
This is possibly a complicated issue and you must seek expert help.
This is general info only, and doesnt constitute legal help. If youd like more information in relation to this matter in Family Law or other legal considerations please contact Simon Creek on Free call 1800 609 945 or email Simon at Simon.Creek@hhg.com.au.’
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