My parents have separated and my dad is thinking of declaring bankruptcy. Even though he technically can still service

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Customer: Hi, my parents have separated and my dad is thinking of declaring bankruptcy. Even though he technically can still service his debts, including the mortgage. Can he do this?
JA: What steps has your father taken? Has he filed any papers in family court?
Customer: No steps taken, but has called me and said he was thinking of filing for bankruptcy and my mum would get nothing
JA: Family law varies by state. What state are they in?
Customer: Queensland
JA: Anything else you want the Lawyer to know before I connect you?
Customer: So the current situation is mum was paying joint mortgage up until February and they verbally agreed that the house was worth 600k at the point. Mum was going to stop paying the mortgage from then, dad would maintain the mortgage until they sold or he bought her out
Answered by John Melis in 6 hours 1 year ago
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John Melis
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Where the relationship has broken down, there are a couple of steps that may be taken. If not done so already, mediation can be used to consider reconciliation through relationships Australia. If that does not achieve an outcome the next step is to consider starting the formal process of financial separation.

Financial separation involves having all the assets total into a pool, and then a division is decided upon who gets what percent, for example you may get 70% and your partner 30%. In determining the percentage split all factors are taken into account which include direct and indirect contributions.

The aim should be to settle the financial aspect amicably without processing the matter in court whether it be the Federal Circuit Court or Family Court when children are involved.

Separation can occur under one roof, which means you do not need to leave the family home.

If separation cannot occur amicably it will need to proceed into the court.

If you are facing domestic violence you may want to consider have a family violence order put into place your safety.

Financial separation involves various aspects with alteration of property interests under section 79 of the Family Law Act 1975. Financial separation will usually take into account four facts:

[1] The process will consider the extent of the property of the parties and its value.

[2] The process will consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character, and contributions to the welfare of the family, including contributions as homemaker and parent.

[3] The process will consider the circumstances which relate to the present and future needs of the parties and to their means, resources and earning capacity, actual and potential.

[4] The process will consider the effects of points 1 to 3 and resolve what order is just and equitable in all the circumstances of the particular case.

Alteration of property interests between separating couples is an emotional and stressful process and seeking help early is important.

The first step with financial separation is putting together a list of all the assets, and where you are not sure what they are you will need to do a little bit of investigative work to complete list.

Once you have the list ready, the next step is to either commence the process with the forms from the Federal Circuit Court’s website, or with the assistance of a lawyer.

If the financial separation process is done on an amicable basis the matter should be resolved within 3 to 6 months.

The important aspect of the financial separation process is documenting the division of the assets in a binding financial agreement or by consent orders which can be stamped by the court making it a more solid agreement to end the matter.

You have a legal right to protect your interests in this situation.

Please use the following link to assist you with working out how the division of the asset pool is calculated:

http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html

BANKRUPTCY

The following links will provide exactly what you require to file for personal bankruptcy on a personal level:

[1] https://www.afsa.gov.au/insolvency/i-cant-pay-my-debts/apply-bankruptcy

[2] https://www.afsa.gov.au/insolvency

[3] https://www.afsa.gov.au/insolvency/how-we-can-help/forms/forms-apply-bankruptcy

Personal bankruptcy is not often talked about, because it is one of those topics that people do not want to associate themselves with when a particular individual has become bankrupt. People can be vicious, and sometimes bankruptcy is not the fault of the person and others do not see it that way.

So what are the impacts on a person when they are bankrupt?

Bankruptcy can be a lengthy process for an individual, and can continue well after the three year period on which a bankruptcy may be discharged against that person.

When a person is made bankrupt the impact on that individual can be long lasting with the loss of face from family, friends and the business community. There is a mark of failure branded on the individual or humiliating character if the person cannot arise above the stigma that is upon them because of the bankruptcy. It often occurs that society will shun a bankrupt as a criminal, when in fact some circumstances they are not.

However, the blame for losses will eventually lay upon the bankrupt. Someone has to take the ‘fall’ for the decisions that were made, whether right or wrong.

The bankrupt has a number of important rules to follow. The bankrupt must attend meetings of creditors as the trustee requires. The bankrupt will be questioned in detail, which may be demeaning for the bankrupt. The bankrupt has to answer questions, disclose property, financial dealings, which may include with other people, companies, partnerships and entities.

The trustee will investigate the conduct of the bankrupt, accounts, and all other examinable affairs. The bankrupt will be required to deliver records and information as needed by the trustee. The bankrupt has to allow the trustee reasonable access to their premises and records. If the bankrupt fails to comply with the administration requirements of the bankruptcy process, the trustee may seek assistance from the court that the bankrupt be examined by the court, and other orders placed on the bankrupt to comply with the orders of the trustee.

If the bankrupt fails or refuses to comply with an order from the court, the bankrupt may be arrested and jailed if insufficient reason is provided by the bankrupt for failing to comply with an order.

If the bankrupt changes their name or address they need to notify the trustee and failure of is an offence, and may result in an objection to the discharge of the bankrupt when that time occurs.

When a bankrupt is working and their income reaches a certain threshold, the trustee may require the bankrupt to make contributions from their income under the direction of the trustee. Where the bankrupt fails to comply with the trustee direction, an automatic discharge from bankruptcy may be stopped.

Where a bankrupt has other accounts with banks or other financial institutions in Australia, the bankrupt cannot remove funds from those accounts, and those financial institutions that hold those funds are not permitted to allow payments out of those accounts unless authorised by the trustee. Then where money of the bankrupt is insecure, a freezing order may be applied against the account by the trustee through obtaining an order of the court.

The bankrupt cannot travel outside Australia unless consent is provided by the trustee, and the bankrupt must surrender their passport to the trustee. If the bankrupt leaves Australia without consent, an offence will have been committed by the bankrupt.

When a bankrupt seeks credit of over $5,447.00 which is indexed per year, the bankrupt is required to disclose to that party they are an undischarged bankrupt. This disclosure may result in the bankrupt not being able to carrying on a business if they are required to obtain credit in some form.

A bankrupt is prohibited from managing a corporation or being part of its management. Then if a bankrupt works in certain professional trades, such as a lawyer, accountant, veterinarian, builder, real estate agent, they will suffer working restrictions. The number of professions that are affected by bankruptcy order is extensive.

If prior to bankruptcy the person was a trustee of a self-managed super fund, and that person is made bankrupt, they can no longer be a trustee of the self-manage super fund.

There are many significant impacts on a bankrupt, and if there are alternative options to avoid bankruptcy they should be considered. For as once you have been made bankrupt the effects will be long lasting.

If possible I recommend that you consider engaging a lawyer to offer as example 30 cents in a dollar to avoid a bankruptcy record. This type of negotiation is possible but it needs to be diligently done.

Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

Customer
Thank you. If my father declares bankruptcy prior to the marrital assets being split, how does this affect my mum?
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John Melis, Expert

The financial separation and still continues and her appointed administrator on the bankruptcy will manage that process on her behalf

Customer
She isn't the one going bankrupt, my dad intends to. But my mum doesn't. However, can my dad even claim bankruptcy when his assets are more than his debt?
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John Melis, Expert

It wouldn't be wise to go into bankruptcy if there is more assets in debt it would be better to re-sums form of conclusion with the creditors of a payout of some form

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