The first step in the family law process when negotiating a property settlement is to determine what the asset pool is.
The asset pool includes all property owned jointly and solely and it is valued at the time of negotiations, not at the time of separation (even if a significant amount of time has passed since separation).
The value prescribed to an asset depends on the nature of the asset itself.
Real property is generally the highest value asset in the property pool for which it is sometimes difficult to reach an agreed value.
The best starting point in determining the value of real property is to obtain at least three market appraisals, which can be obtained from real estate agents and are usually free of charge. It may be that you and your partner can reach an agreement based on the average of the appraisals obtained.
If you cannot reach an agreement, then you will need to obtain an independent valuation from an expert valuer that is jointly engaged by the parties.
It is important that the nominated valuer is agreed between the parties in advance.
Low-cost valuations for vehicles can be obtained from Carsales.com or Redbook.com.
Furniture, chattels, and personal belongings (including jewellery)
These are often contentious assets when it comes to agreeing to a value. While many would consider it appropriate to value things at their replacement or insured value, the Court take a conservative approach to valuing these assets.
It is appropriate to use the second-hand, market value of these items.
For example, how much would you receive if you sold them on Facebook marketplace?
Most superannuation funds allow you to login to your account online to see your current balance of entitlements.
In most cases you can also access a balance of your superannuation entitlements via your MyGov login under the “Superannuation” tab.
If you are unable to access this information, you can write to the trustee of your superannuation fund to obtain a current value.
If you are the non-member spouse, you have the option of completing a Superannuation Information Request Form (Form 6) along with a declaration, which is sent to the trustee of the superannuation fund.
If a party has an interest in a government scheme or fund, then you may need to obtain a valuation for the superannuation interest. This particularly relevant if the scheme involves a “Defined Benefit”.
The value of member entitlements held within a self-managed superannuation fund are generally available in the most recent financial statement for the fund.
Businesses, Companies, and Trusts
If there is a complex, high-value business/company/trust structure, then it is best to obtain a formal valuation from a business valuation specialist that is prepared to a “court” standard.
If required, these experts should be jointly appointed as a Single Expert Witness if your matter proceeds to trial.
It is also possible to reach agreement on a proposed business valuer if your matter is not the subject of litigation.
In conclusion, the starting point to every property settlement is for the parties to determine what the value of each asset is.
If an agreement cannot be reached, then independent valuers will need to be appointed with the understanding that the resulting reports/valuations will be relied upon for the purpose of negotiations, and if the matter is the subject of litigation, may be considered by the presiding Magistrate with significant weight.
It is important that any independent valuer/expert is agreed in advance, including how their costs will be met.
The Family Law Rules provide for the costs of an expert to be shared equally, unless there are specific circumstances that dictate otherwise.
Once the value of the asset pool is agreed upon, the parties are able to meaningfully negotiate and hopefully reach an agreement as to how the pool is to be divided.