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National Library of Australia Cataloguing-in-publication data

Asset protection in the Family

Court Wednesday, 21 September

REB~ 978-1-76022-194-2 ISSN 0816-9667

11 1 ', 1 L '' ; • ~· I '. I

Level 4, 160 St Georges Terrace, Perth WA 6000, OX 173 Perth I Phone: (08) 9324 8600 1 Fax: (08) 9324 8699 I Email: cpd@lawsocielywa asn.au 1 Web www lawsoc1etywa asn au

www.lawsocietywa.asn.au

Asset protection in the Family Court

Programme at a Glance

Event Registration 4.45pm

Introduction 5.00pm

Chair- Trevor O'Sullivan, Partner, O'Sullivan Davies

Asset protection in the Family Court 5.05pm

Speaker- John Butler, Principal, Butlers

Close 6.00pm

Speaker Biographies

Chair - Trevor O'Sullivan Principal O'Sullivan Davies

Trevor graduated from the University of Western Australia in 1969. He was admitted to the Supreme Court of Western Australia in 1972 and to the High Court of Australia in 1987. Trevor has been practising Family Law for almost 40 years and became an accredited Family Law Specialist in 1992. Trevor completed the Professional Certificate of Arbitration and Mediation at the University of Adelaide in 1999 and is a member of LEADR, AI FLAM and the Resolution Institute (formerly lAMA). Trevor is certified by the Commonwealth Attorney General's Department as a Family Dispute Resolution Provider. Trevor is a Fellow of the International Academy of Family Lawyers. Trevor is a member of the Family Law Practitioners' Association of WA and has previously held a number of other positions including President and Secretary. In 2013 Trevor was made a Life Member of the Family Law Practitioners' Association of WA. Trevor also chairs the Law Society's Accreditation Committee. Prior to forming O'Sullivan Davies, Trevor was a Partner at Clayton Utz for 15 years. Before that, he was also a Partner at the fi rm now known as llberys for 10 years. He has served on the Executive of the Family Law Section of the Law Council of Australia and has given numerous papers at local and national conferences and to tertiary institutions and specialist interest groups. His other interests include education and Trevor is the Chair of the Council of Wesley College. Finally, Trevor is Chairman of the WAFL Tribunal.

Speaker - John Butler Principal Butlers Barristers & Solicitors

John is a Barrister and Solicitor of the Supreme Court of Western Australia, a Solicitor of the Supreme Court of New South Wales, a Barrister and Solicitor of the Supreme Court of the Australian Capital Territory, and on the Roll of Legal Practitioners for the High Court of Australia . John has been admitted to practice for over 42 years, and has worked in the law for over 48 years. John has practised in New South Wales, in the Australian Capital Territory and in Western Australia. He has been a partner in a national legal firm and has twice established his own practice. John is currently the principal of the legal firm known as "Butlers" which is based in Nedlands, Western Australia. Much of John's practice over the last 48 years has been in the areas of Business and Estate Planning, Wills & Estates, and Family Law.

Asset protection in the Family Court

John Butler Principal Butlers Barristers & Solicitors

BUTLERS Ban·isters & Solicitors

Not my Pu hlic

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7

ASSET PROTECTION AND THE FAMILY COURT

John Butler, Principal

Butlers, Barristers & Solicitors

The separation of the legal and beneficial ownership in a trust often makes trusts attractive vehicles when it comes to asset protection.

However, how are trusts treated in the Family Court?

Is it possible to protect a trust asset or financial arrangement from family law claims?

1. INTRODUCTION

1.1 The treatment of discretionary trusts in the Family Court

In the event that a relationship breaks down and in the absence of a financial agreement,

the Family Court may make such Orders "as it considers appropriate" to alter parties'

interests in property.1

"Property" means property to which those parties are, or that party is, as the case may be,

entitled, whether in possession or reversion.2

In order to decide what is "appropriate" the Family Court will consider each party's property

and financial resources. Financial resources, unlike property, cannot be divided because

the party's interest has not yet vested in that party (for example, future business income).

However, if a party is the named beneficiary in a discretionary trust it is likely that the trust

property would form part of that party's asset pool and therefore be included in the net

asset pool available for division.

1 Family Law Act 1975 (Cth) s 79; Family Court Act 1997 (WA) s205G 2 Family Law Act 1975 (Cth) s 4; Family Court Act 1997 (WA) s 205T 663908/ADA

2

The tension really lies in what value can be ascribed to a party's interest in a trust. It is

well known that a party's interest in a discretionary trust is not a proprietary interest.

There is no present, quantifiable entitlement to the trust assets; rather, the

discretionary beneficiary's interest is limited to due administration of the trust. 3

In the case of Kennon v Sprl the High Court held that property of a discretionary trust

can be defined as property if the spouses are not the appointers or the trustees of the

trust, but instead, beneficiaries, if it can be shown that a spouse has 'indirect' control of

the trust.

The issue in Kennon v Spry at first instance and in the many Appeals leading up to

the full High Court Appeal, was whether the discretionary trust assets would be

considered property of the marriage .Ultimately, the High Court held that the trust

assets were in fact property of the marriage, even though the Trust Deed had been

amended to the point where Dr. Spry and Mrs. Spry were no longer beneficiaries, and

the Trust had been separated into four separate trusts for the benefit of the Spry

children. The Court overturned the various amending instruments to the Trust,

effectively reversing the four trusts for the benefit of the Spry daughters.

In the High Court judgment, and the judgments of the lower Courts, a number of

arguments were considered, such as whether the instruments that amended the Trust

Deed were made to defeat an anticipated Order in future Court proceedings, and

whether it was just and equitable to reverse the final form of the Trusts, having regard

to the benefits to the Spry children.

One of the main considerations in Kennon v Sprl was the degree of control that Dr

Spry had over the Trust, despite not being a beneficiary or trustee by the end of the

Trust's life. Chief Justice French stated in paragraph 70 of the judgment:-

''The characterization of the assets of the Trust, coupled with Dr Spry's

power to appoint them to his wife and her equitable right to due

3 Kennon v Spry [2008] HCA 56 4 Kennon v Spry [2008] HCA 56 55 Kennon v Spry [2008] HCA 56 6 Kennon v Spry [2008] HCA 56

3

consideration, as property of the parties to the marriage is supported by

particular factors. It is supported by his legal title to the assets, the origins of

their greater part as property acquired during the marriage, the absence of

any equitable interest in them in any other party, the absence of any

obligation on his part to apply all or any of the assets to any beneficiary and

the contingent character of the interests of those who might be entitled to

take upon a default distribution at the distribution date. "7

The Full Court considered the treatment of discretionary trusts in the case of Harris and

Harris8. This case provided some further clarity as to the matters which should be

considered when assessing whether the assets of a discretionary trust should form part of

the net assets available for distribution. Significantly this case sought to define the concept

of 'indirect control' as mentioned by French CJ in Kennon v Spry9• This case defined

indirect control as a puppet situation. It established that in order to prove that there is

indirect control of a trust, evidence must first be provided to support a 'puppet' scenario,

rather than relying on the Court to consider the history of trust contributions.

I will explore the concept of 'control' in further detail below.

1.2 The treatment of trusts in general; such as testamentary trusts and unit

trusts

Whether a party's interest in a trust constitutes property or a financial resource is a

question of fact and degree. If trust assets are considered property of a party, as opposed

to a financial resource, the Family Court has a number of powers pursuant to the Family

Law Act 1975 (the FLA) in dealing with those assets, the Family Court may:

a) Include the trust assets in the net pool and make orders to vary interests in

the trust property, transfer the trust property or make a settlement of

property in substitution for the trust property; 10 and;

7 Kennon v Spry [2008] HCA 56 Para 70 8 Harris v Harris [2011] 9 Kennon v Spry [2008] HCA 56 1° Family Law Act 1975 (Cth) s79; Family Court Act 1997 (WA) s205G

4

b) Set aside or restrain transactions (including those made with third parties)

which are intended or likely to defeat existing or anticipated orders of the

Family Court. 11

The question of whether the trust property is property of the parties is a matter dependent

upon the facts and circumstances of each particular case including the terms of the

relevant trust deed. 12

Despite being a question of fact particular to the relevant circumstances, case law has set

out some broad principles which can be used to assist in determining whether the trust

property is the property of a party. These principals are:-

a) The level of control/discretion that the party has over the trust property; 13

b) The intention of the settlor and trustee and the range of beneficiaries; 14

c) Whether the trust is a sham; 15

d) Historical distributions of trust property; 16 and

e) The source of trust assets including contributions to the trust assets.17

Control

It was held by the High Court in Kennon v Spri 8 that property, the subject of a trust of

which the husband was sole trustee and settlor and one of many beneficiaries (which also

included the wife) was property of the marriage.

There are examples where a party has been held to control trust property even when they

were neither a trustee nor an appointor/settlor. In one particular example, Beeson &

Spence [2007] FamCA 20015 the trust property was held to be the property of the wife to a

dispute on the basis that she had control of the trust assets. Even though the wife was not

a trustee and had since resigned as the appointor to the trust (being replaced by her

11 Family Law Act 1975 (Cth) 106B 12 Marriage of Goodwin FLR 392 13 Kennon v Spry 2008) BCA 56 14 Keach & Keach and Or [2011] FamCA 192 15 Keach & Keach and Or [20 11] FamCA 192 16 Keach & Keach and Ors [201 1] FamCA 192 17 Kennon v Spry 2008) HCA 56 18 Kennon v Spry [2008] HCA 56

5

sister), the wife retained sufficient control (through her relationship with her sister) to

support the conclusion that the assets should be treated as property of the marriage.

In contrast, in the case of Morton & Morton [2012] FamCA 30, a husband was deemed not

to have sufficient control over trust property where he was the joint trustee and joint

appointor to that trust. It was made clear by the Court that even though there was a "warm

and loving relationship between the brothers" that neither had a better right than the other

and therefore neither could be considered to control the trust.

Purpose of the trust and the range of beneficiaries

In the case of Webster & Webster [1998] FamCA 1517, one of the trusts in question, (the

W trust}, was established for the benefit of the children in the marriage, of which, the wife

was the appointer, the wife was also sole shareholder and director of the corporate trustee.

The Court considered the following (at para 104):

"Whether the assets of any trust are to be included in the assets available for

distribution is a matter of fact to be determined taking into account various

considerations. More often than not the assets of discretionary trusts are included

in the net asset pool because the factual analysis suggests they ought to be. But

there is no automatic assumption or presumption that they be treated this way as

distinct from constituting a resource to the controlling party. Here in this case, the

facts suggest that the trust was indeed specifically established for the children's

benefit and protection, that was done consciously as part of the arrangements in

re-settling the CM Lawson Trust, it was a step which clearly had the support not

only of the wife but also the husband at the time. That ought to be respected now."

While Webster & Webster was decided before Kennon v Spry leaving one open to

question whether, if the same facts were to be considered now, more weight might be

placed on the level of control the wife had over the trust assets, it is clear from Webster &

Webster that the intention of the trust will play a role in determining whether the trust

should form part of a party's, or the parties', assets.

It was also evident in the decision in Kennon v Spry that the High Court took the intention

of the trust into consideration (at [60] in the HCA citation):

1

Counsel for Mrs Spry submitted that when the primary judge determined the

proceedings the assets of the Trust were the property of a party to the marriage as

Dr Spry was the only person entitled in possession to them. On that basis the

Family Court had the power to make the order it did. No object in the Trust had any

fixed or vested entitlement. Dr Spry was not obliged to distribute to anyone. The

default distribution (cl 7) gave male beneficiaries other than Dr Spry no more than a

contingent remainder. None had a vested interest subject to divestiture. The

application of s 79, as a matter of construction, to the Trust assets was said to be

supported by a number of considerations. Among these was the "true character"

of the Trust as a vehicle for "Dr and Mrs Spry and their children" ... [my

emphasis added]

In my opinion the argument advanced on behalf of Mrs Spry should be accepted

save that it is the Trust assets, coupled with the Trustee's power, prior to the 1998

Instrument, to appoint them to her and her equitable right to due consideration, that

should be regarded as the relevant property.

The range of beneficiaries can also play a significant factor in determining whether the

trust assets form part of a party's assets. For example, the larger the class of beneficiaries

of which a party is a member, the less likely that the trust assets will form part of a party's

assets. This was highlighted in Leader & Martin-Leader [2009] FamCA 979 where the

ability of the trustee to distribute trust assets to a number of beneficiaries supported the

conclusion that trust property was not the property of any of the beneficiaries.

In Leader & Martin-Leader, the wife was a discretionary trustee, along with her siblings to a

number of discretionary trusts. While the case was determining the question of whether the

wife's family company was obliged to comply with a subpoena to produce documents in

Family Court proceedings, the Court commented that, on the evidence before it, the trusts

were ultimately controlled by the wife's parents and not any of the siblings (including the

wife). The husband argued that the trust property was marital property on the basis of a

family agreement which existed and provided that in regard to particular trusts in which the

wife was one of a number of beneficiaries, the beneficiaries other than the wife agreed to

direct the trustee not to consider them for distribution of trust assets. At [7~ the Court

stated:

2

''Thus, the related factors of control by one party to the marriage and a potential

beneficial interest of one party to the marriage which existed together in the matter

of Kennon v Spry can be distinguished from this matter in which it is asserted that

the wife does not have any control of any of the entities but is merely a potential

beneficiary or a person falling within the class of beneficiaries. The Family

Agreement between the parents and siblings is not construed to be binding upon

the parents so far as their exercise of control of the trust is concerned. The Family

Agreement could be construed as providing the wife with certain rights in relation to

her siblings and possible other rights yet to be determined."

Whether the trust is a sham

The Court has the power to ignore a trust where it is simply a device to evade a party's

obligations under the Family Law Act 1975. Where a sham trust exists, the Court may

simply treat the property as though the trust did not exist and therefore treat it as marital

property.

The High Court dealt with the concept of sham trusts in Ascot Investments v Harper (1981)

55 ALJR 233 where Gibbs CJ, as cited by Strickland J in Keach & Keach and Ors [2011]

FamCA 192 at [172.4.8] stated that:

"The position is, I think, different if the alleged rights, powers or privileges of the

third party are only a sham and have been brought into being, in appearance rather

than reality, as a device to assist one party to evade his or her obligations under

the Act. Sham transactions may always be disregarded. Similarly, if a company

is completely controlled by one party to a marriage, so that in reality an order

against the company is an order against the party, the fact that in form the order

appears to affect the rights of the company may not necessarily invalidate it".

Strickland J also cited Kirby J in Raft/and Pty Ltd as Trustee of the Raft/and Trust v

Commission of Taxation (2008) 246 ALR 406:

"The key to a finding of sham is the demonstration, by evidence or available

inference, of a disparity between the transaction evidenced in the documentation

(and related conduct of the parties) and the reality disclosed elsewhere in the

evidence. Where, for example, the evidence shows a discordance between the

3

parties' legal rights or obligations as described in the documents and the actual

intentions which those parties are shown to have had as to their legal rights and

obligations, a conclusion of sham will be warranted."

The test as to the parties' intentions is subjective. In essence, the parties must

have intended to create rights and obligations different from those described in

their documents. Such documents must have been intended to mislead third

parties in respect of such rights and obligations.

In Keach & Keach, the husband's father set up a separate trust for each of his four

children. The husband's trust being called the 'Junior Trust'. On creation, the beneficiaries

of the trust were the husband and his siblings. The father's solicitor and friend, Mr N was

the settlor of the Junior Trust. Subsequently, the original corporate trustee of the Junior

Trust, Keach Nominees Pty Ltd, in which the husband was a shareholder (along with his

father, mother and siblings) and director, was replaced with Company 1 Pty Ltd in which

the husband was a sole shareholder/director.

It was clear to Strickland J and conceded by the wife's counsel, that while the husband

was the sole shareholder of the corporate trustee, he did not have "control" of the trust

property. At [161] Strickland J held that:

"It is quite apparent though that the husband only did and said things with the

authority of, or under the direction of, his father as the person who controlled the

Junior Trust."

And at [172.13]:

"Taking up these points, I firstly note that in his final address the wife's senior

counsel confirmed that the wife was not seeking a finding that there is a sham in

relation to the control of the Junior Trust, it being conceded that at all relevant times

the husband's father controlled the Trust"

4

Strickland J stated that because the husband's father caused the establishment of the

Junior Trust, and thereafter he controlled it, it was the intention of the husband's father that

was the relevant intention in determining whether the trust was a sham, not the .husband's.

It was apparent to Strickland J that the Junior Trust was not a sham and was established

along with the other trusts, primarily benefitting the four children through those trust

structures. Strickland J held that "there is of course the omission of "spouses" as

beneficiaries but that is consistent with the above intention and nothing sinister can be

drawn from it."

Strickland J stated at [5.1. 7.2] that:

"/ fail to see how the settlement of shares on each of the trusts is indicative of a

sham, or indeed to be precise, indicative of the husband's father holding the

intention referred to above.

The evidence is uncontroversial that the husband's father was the source of all of

the assets of the Junior Trust. Neither the husband, nor the wife for that matter,

contributed any money towards the purchase or renovation of the [M property]. The

husband (and the wife) paid rent to the Junior Trust at all times during their

occupancy. It seems that the parties paid Jess rent than the previous tenant but it

must not be forgotten that the property was better cared for and maintained by the

parties than strangers, and the husband and the wife, in effect, undertook

substantial unpaid work for the Junior Trust in relation to the property, and

generally. In my view this circumstance cannot be considered unusual or an

indicator of an intention on the part of the husband's father that the husband would

in reality own the property rather than the Trust. Indeed the evidence is that it was

the husband's step-mother who ultimately found this property."

It is clear from Keach & Keach that where the intention of the controller of the trust assets

is consistent with the terms of the trust document, it is unlikely that the trust can be

considered a sham

1.3 How the Family Court deals with offshore assets

5

The Family Court of Western Australia has the power to make Orders in relation to assets

held overseas. It is important to remember that Orders under Section 79 Family Law Act

1975 are made in 'personam' and not in 'rem'. This was highlighted In the Marriage of

Wallmann 19 The Court is therefore able to make Orders under this section, irrespective of

where the asset may be located.

If a party to property proceedings has an overseas asset then they must disclose it in

accordance with Chapter 13 of the Family Court Rules 2004. Once the asset has been

disclosed it would be need to be valued. If parties are unable to agree a valuation then an

independent Valuer will be appointed to assess the value of the asset. The Court can

make an Order in relation to an asset located abroad by simply making an Order that the

party to the marriage or de facto relationship deal with that asset in a particular way.

>iJI£

Is it possible to "Family Court Proof" a trust or asset or financial 1

.,r L, ik "vi t' ""l ·{ arrangement? Can you at least mitigate the risk? ~ .f\1-1..,. ') (Mj,.. f r L--'" !Y"V

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1.4

Practitioners will be aware that the Family Court Rules 2004 provide an ongoing duty of rx>-7 f~ disclosure. Chapter 13 (1) and (2) say:-

"(1) Subject to subrule (3), each party to a case has a duty to the court and to each other

party to give full and frank disclosure of all information relevant to the case, in a timely

manner.

Note: Failure to comply with the duty may result in the court excluding evidence that is

not disclosed or imposing a consequence, including punishment for contempt of court. This

Chapter sets out a number of ways that a party is either required, or can be called upon, to

discharge the party's duty of disclosure, including:

(a) disclosure offinancial circumstances (see Division 13.1.2);

(b) disclosure and production of documents (see Division 13.2.1); and

(c) disclosure by answering specific questions in certain circumstances (see Part 13.3).

19 [1982] F.L.C 91-204 at 77, 076

6

(2) The duty of disclosure starts with the pre-action procedure for a case and continues

until the case is finalised."

At the time of separation it is too late to take any steps to try to hide or dispose of

assets or alter trust arrangements. An attempt to do this may result in Costs Orders

being made against the party seeking to dispose of or hide the asset.

As outlined above, the case of Kennon v Spry has set out some broad principles for

consideration with regard to trust property. This test will be applied by the Family Court

to any trust in which the parties (or one of them) appear to have an interest.

One of the most effective ways of protecting assets is to use a Binding Financial

Agreement.

1.5 Binding Financial Agreements; are they watertight?

The Family Law Act makes provision under Part VIllA for parties to an impending

marriage, those who are married, and even those who are divorced to enter into a

financial agreement, the effect of which, if binding, seeks to exclude the jurisdiction of

the Court from making Orders in relation to property settlement or even spousal

maintenance, upon separation or divorce.

The Full Court in Black v Black made clear that "strict compliance with the statutory

requirements is necessary to oust the Court's jurisdiction to make adjustive orders

under s79 of the Family Law Act."

"40. The Act permits parties to make an agreement which provides an amicable

resolution to their financial matters in the event of separation. In providing a regime for

parties to do so the Act removes the jurisdiction of the Court to determine the division

of those matters covered by the agreement as the Court would otherwise be called

upon to do so in the event of a disagreement. Care must be taken in interpreting any

provision of the Act that has the effect of ousting the jurisdiction of the Court. The

amendments to the legislation that introduced a regime whereby parties could agree to

7

the ouster of the Court's power to make property adjustment Orders reversed a long

held principle that such agreements were contrary to public policy .. . "

1142. The underlying philosophy that had guided the courts in enunciating that

principle was seen to place too many restrictions on the right of parties to arrange their

affairs as they saw fit. The compromise reached by the legislature was to permit the

parties to oust the Court's jurisdiction to make adjustive Order's but only if certain

stringent requirements were met."

Where there has been compliance with the relevant provisions contained within Part VIllA

it serves to oust the Court's jurisdiction under s71A. This part reads:-

"(1) This part does not apply to:

a) financial matters to which a financial agreement that is binding on the

parties to the agreement applies; or

b) financial resources to which a financial agreement that is binding on the

parties to the agreement applies."

Murphy J in Fevua & Carmel- Fevia20 said that the Court's power to make Order's pursuant

to Part VIII is 'curtailed only in respect offinancial matters to which a Financial Agreement

applies and only if any such Financial Agreement is binding"21

It is prudent at this stage to remind practitioners of the definition of "financial matters" and

"financial agreement". This is provided within s4 of the Act.

II 'Financial Agreement' means an agreement that is a financial agreement under section

908, 90C or 900, but does not include an ante-nuptial or post-nuptial settlement to which

section 85A applies."

II 'Financial matters' means:-

a) In relation to the parties to a marriage- matters with respect to:

20 [2009] Fam CA 816 21 Fevia & Carmel- Fevia [2009] Fam CA at 174

8

i. The maintenance of one of the parties; or

ii. The property of those parties or either of them;

iii. The maintenance of children of the marriage; or

b) In relation to the parties to a de facto relationship- any or all of the following

matters:-

i. The maintenance of one of the parties;

ii. The distribution of the property of the parties or of either of them;

iii. The distribution of any other financial resources of the parties or of

either of them"

There are different types of Binding Financial Agreements. The relevant statutory

provisions in Sections 90B, 90C, 900, 90UB and 90UD specify the particular requirements

imposed for the making of a financial agreement. These requirements were summarized

in the case of Ruane & Bachmann- Ruane & Amor [2009] Fam CA 1101. Cronin J said that

the requirements were threefold:-

(1) There must be a written agreement with respect to any (but not necessarily all) of

the property, financial resources and/or maintenance of the parties;

(2) the parties to the Financial Agreement cannot be parties to any other 'binding

financial agreement' with respect to the matters in (a) above;

(3) the Financial Agreement must be expressed to be made under s90B, s90C, s90UB,

s90UC or s90UD (as the case may be).

There are additional requirements to ensure that the Financial Agreement is binding.

The agreement needs to be signed by all the parties and Section 90GA{2) provides

that parties to an Agreement must receive independent legal advice before signing the

agreement. It further says:-

1. That advice must be provided by a legal practitioner holding a current Australian

practising certificate; and

2. The Legal Practitioner must provide a signed statement that advice has been

provided; and

9

3. A copy of the statement referred to above is given to the other party or to a legal

practitioner for the other party.

It should be remembered by practitioners that the Court does not have the ability to

consider whether a Financial Agreement is 'just and equitable'. If the requirements of

s90G are satisfied, absent of any of the violating factors set out in s90k such as

unconscionability, fraud or duress, the Court will hold the parties to the terms of the

agreement. This is clear from the decision in Hoult v Hould [2013] FamCAFC 109.

If Financial Agreements are prepared and signed in accordance with the provisions of

the Act then they can be "watertight". Couples need to ensure that their Binding

Financial Agreements are correctly prepared and signed in accordance with the

provisions of the Act to ensure that they are not later set aside by the Court upon

separation.

Conclusion

It is quite common for parties to Property proceedings to hold assets in a Trust, or to be

named as a Beneficiary to a Trust. It is also much more common for parties to hold

property in a foreign country.

Once parties have separated it is too late for them to try and alter the arrangements of

a Trust. The case of Kennon v Spry has helpfully provided guidance as to the matters

the Court will consider when assessing whether trust property should form part of the

asset pool available for distribution. Trusts are an attractive vehicle for many clients but

it is not always possible to ensure trust assets will not be included within Family Law

claims.

It is safest for parties to a marriage or de facto relationship to enter in to a Binding

Financial Arrangement. This is the easiest way to ensure that a party's position is

protected upon separation. It is simply too late to seek to alter interests post

separation.

Questions

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