Accredited Specialist in Family Law and Baker Love Lawyers partner JILLIAN STIBBARD talks about establishing the value of assets when determining a distribution of the asset pool between separating couples.
The first step in the property division process is to ascertain the net asset pool. It does not matter at this stage if the assets are acquired before or during the relationship – they must be ascertained.
In determining the asset pool, all property must be included, not just real estate. All property will include savings, shares, motor vehicles, jewellery, furniture and other effects, as well as superannuation.
In determining the net asset pool, the Court must also consider any financial resources of the parties, such as an interest in a Trust or possibly prospective entitlements. In determining the net asset pool, valuation issues frequently arise.
In relation to real estate, when parties commence the negotiation process, they may be content to rely on market appraisals of real estate provided by real estate agents. However, if matters proceed to Court and ultimately to Trial, a formal valuation from a properly qualified valuer will be necessary if the parties are unable to agree on a value.
The Court expects parties to rely on a jointly appointed valuer in most circumstances. The procedure is strict in relation to the joint expert who must be seen to be acting impartially and in accordance with the Rules.
If a valuation by a jointly appointed expert is considered by either of the parties to be inadequate in any way, each party, subject to a strict timeframe, can ask questions of the valuer and/or have a meeting with the valuer by agreement with the other party.
Ultimately, the party may apply for another adversarial expert to put alternative evidence to the Court as to the value of a particular asset.
Taxation, including capital gains tax and stamp duties may also arise and affect the value of an asset and therefore the net asset pool.
It is important for parties to receive appropriate legal advice to ensure that all issues are taken into account appropriately.