How is your business treated in a divorce?

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Divorcing or separating from your spouse is emotionally stressful, but it can also have substantial impact on your business. Here’s what business owners need to know in order to protect all their assets.

Divorcing or separating creates challenges not only for the spouse(s) running the business, but also for any partners or other shareholders in the business, as well as for the continuity and value of the business.

Each spouse has an ongoing obligation to give full and frank financial disclosure. This means that business records, financial statements, bank records, BAS and tax documentation must be compiled and provided to each spouse. This could be required several times during a court process.

All business interests, whether in a partnership, sole trader, company or trust structure, can be treated by the court as ‘property’ as defined by the Family Law Act, and must be attributed a value.

It is important to understand that the business structure and the control of the business entity will have a significant influence on how the business is dealt with during a separation. So keep up-to-date and accurate records.

Sole traders

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Most of the time, the business remains with the sole trader who has the skill and training, and a value needs to be attributed to the business.

Ordinarily, the value of the business hinges almost entirely on the personal reputation of that individual. Usually a modest value is applied to such a business interest as a ‘value to the owner’.

If there are multiple employees, the value of the business is determined by the usual valuation processes.

Partnership businesses

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Businesses that have a partnership can be broken into two categories:

Spouses in partnership

Usually one spouse retains the business. A value is determined for that business the same way as for a sole trader: value to the owner.

Similarly, if the business has employees and has been operating for a number of years, it needs to undergo the normal business valuation process.

In a situation where both spouses have worked in the business and then go through a separation, that has a significant impact on business continuity and affects the staff. It is rare for a business to continue to be operated by two spouses who have separated.

Partnership with a third party or parties

A separation has an impact on the other business partner(s). Not only is there a change of focus by the partner who has separated, there is also the requirement to give disclosure, which is often not welcomed by the third-party partner(s).

 

The court takes into account any partnership agreement with the third-party partner(s) and considers the effect of the separation on the partnership and the third party’s rights.

It is highly recommended that all partners in a business enter into a partnership agreement prior to the separation. Such an agreement could stipulate the method to determine the value of the business and the actions to occur in the event of a separation, such as trigger provisions to enliven a buy/sell arrangement between the partners. These clauses can work to preserve the business continuum, as well as maintain the value in the partnership.

Company-held businesses

If the business is owned by a ‘family company’, where the shares in the company are held by the spouses, then it is considered essentially an alter ego of the spouses and dealt with as a quasi-partnership.

If the business is owned by a company that has third-party shareholders, because the business is an asset of that company, it is necessary to determine the value of the shares in the company.

In either scenario, the business still needs to be valued and disclosure given, but the value of the shares also depends on the balance sheet of the company.

Often a common entry on the balance sheet is a director’s loan account. Whether it is a credit or debit, that loan also needs to be considered in the valuation of the shares and the determination of repayment arrangements.

The court also has to consider the company structure to determine the control of the company. For example, whether there is an equal or an unequal shareholding and the different share classes.

The control of the company is a key factor. For example, one party may have a majority (simple) or a special majority, which may ultimately affect the manner in which the company is operated and valued.

If the separating spouse shareholder has a minority shareholding with a third party, then that minority shareholding will probably have a lesser value attributed to it for practical purposes, because the minority shareholder is unable to make determinations about the company.

The opposite applies if the separating spouse has the majority shareholding and is therefore able to exert a majority influence and control the operations of the business.

A well-crafted shareholders’ agreement is advisable. This may include determining a value and specifying trigger events such as separation from a spouse, leading to the requirement for a buy/sell arrangement. The company constitution could also be important to consider.

If the separating spouses are directors or secretaries of a company, they must remember that they are still required to comply with the Corporations Act 2001 and their duties and obligations as an office-holder, to act in the best interests of the company and the members as a whole, even though they are going through a separation.

Trusts

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In a trust arrangement, the first question is ‘Who has control of the trust?’ Much also depends on the type of trust.

 

In a discretionary trust (also often called a ‘family trust’), it is necessary to consider the trust deeds, the identity of the appointor of the trust and the history of use of the trust.

If the trust is a unit trust, it may be treated similarly to a company. It is the units in the trust that need to have a value attributed to them, and it is also necessary to consider whether those units can be transferred between the other unit-holders.

Much depends on the content of the trust deed and the powers contained within that document, or any subsequent unit-holder’s deed. The trust deeds and registers are important in disclosure, along with the financial records.

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