Thukral & Trishna (No 4)
[2023] FedCFamC1F 276
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Thukral & Trishna (No 4) [2023] FedCFamC1F 276
File number(s): SYC 3986 of 2019 Judgment of: ALTOBELLI J Date of judgment: 20 April 2023 Catchwords: FAMILY LAW – PROPERTY – Where the parties were ordered to submit their proposed orders reflecting an alteration of property interests as to 60 per cent to the husband and 40 per cent to the wife – Where the parties proposed interlocutory orders in circumstances where the value of the United Kingdom property and pension are unknown – Where the Court has had to adjudicate by way of formulating final orders as neither parties’ proposals were appropriate. Legislation: Family Law (Superannuation) Regulations2001 (Cth)
Family Law Act 1975 (Cth) ss 79, 90XT
Cases cited: Thukral & Trishna (No 2) [2022] FedCFamC1F 698
Thukral & Trishna (No 3) [2022] FedCFamC1F 938
Thukral & Trishna [2022] FedCFamC1F 572
Division: Division 1 First Instance Number of paragraphs: 11 Date of last submission/s: 27 January 2023 Date of hearing: Determined on the papers Place: In Chambers Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Acorn Lawyers ORDERS
SYC 3986 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS THUKRAL
Applicant
AND: MS TRISHNA
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
20 April 2023
THE COURT ORDERS THAT:
1.By way of alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), all of the property of the Applicant husband (“the Husband”) and Respondent wife (“the Wife”), whether superannuation or non-superannuation assets, be divided between them as to 60 per cent to the Husband and 40 per cent to the Wife.
2.The Husband and Wife do all acts and things and sign all documents necessary to implement Order 1 in accordance with the following orders.
AB Street Property
3.Within 28 days from the date of these orders, the parties do all things necessary to list for sale the property situated at and known as AB Street, City AC in the United Kingdom (“the AB Street property”) (“the UK”) and the parties shall sign all documents necessary with an agreed listing agent to list the property for sale for an agreed figure of not less than 200,000 UK Pounds and the proceeds of sale distributed as follows:
(a)In payment of the balance of principal and interest owing in respect of any mortgage secured upon the said property;
(b)In payment of agent’s commission on the sale;
(c)In payment of legal costs and fees relating to the sale and discharge of any mortgage;
(d)In adjustment of rates and taxes (except CGT);
(e)In payment of all other expenses which may have been reasonably incurred in respect of such sale;
(f)If the sale proceeds for the property exceeds 200,000 UK Pounds, then in payment of 60 per cent to the Husband and 40 per cent to the Wife for the amount exceeding 200,000 UK Pounds; and
(g)In payment of the balance to a controlled monies trust account (called the AB Street sale proceeds account) established and held by the Wife’s lawyers and only to be disbursed in accordance with these orders.
4.To give effect to Order 3 for the sale of the AB Street property the following shall occur sequentially:
(a)As to the appointment of a real estate agent (“the agent’)
(i)Within 14 days from the date of the orders, the Wife shall write to the Husband and nominate three (3) real estate agents for the Husband to select from;
(ii)Within seven days of receipt of the Wife’s communication in Order 4(a)(ii) herein, the Husband shall respond to the Wife in writing, selecting one of the three (3) nominated real estate agents;
(iii)The parties shall thereafter sign all such documents as may be required by the agent to give effect to the appointment; and
(iv)If the estate agent requires any upfront payment for marketing the AB Street property or obtaining any reports such as EPC Certificates etc. then the parties are to do all things necessary to cause this money to be sent to the said estate agent from the monies in the Acorn Lawyers Trust Account from the sale of the former matrimonial home situated at F Street, Suburb G (“the Acorn Lawyers Trust Account”)
(b)As to the appointment of a solicitor/conveyancer
(i)Within seven days from the appointment of the real estate agent, the Husband shall write to the Wife and nominate three (3) solicitor/conveyancers for the Wife to select from;
(ii)Within seven days of receipt of the Husband’s communication in Order 4(b)(i) herein, the Wife shall respond to the Husband in writing, selecting one of the three (3) nominated solicitor/conveyancers; and
(iii)The parties shall thereafter sign all such documents as may be required by the solicitor/conveyancer to give effect to the appointment.
5.The parties meet the costs of any Capital Gains Tax (CGT) as and when it falls due in accordance with their respective liability based on their taxable income, or any other taxation liability arising from the sale of the AB Street property, following any liability calculation made by HM Revenue and Customs in the UK. Both parties shall be entitled to draw down on the AB Street property sale proceeds account in order to meet such liability as an advance on their entitlement pursuant to these orders.
Superannuation Fund 1
6.In relation to the Husband’s Australian superannuation:
(a)In accordance with s 90XT(1)(a) of the Act, whenever a splittable payment becomes payable to Mr Thukral from his interest in Superannuation Fund 1, Ms Trishna is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001 (“the Regulations”), using a base amount of $40,000.00 and there is to be a corresponding reduction in the entitlement Mr Thukral would have had but for these orders.
(b)Having been accorded procedural fairness in relation to the making of these orders, these orders bind the Trustee of Superannuation Fund 1.
(c)In accordance with Section 90 XT (1)(a) of the Act, the Court:
(i)Creates an entitlement on the part of the Wife to be paid the amount calculated in accordance with Part 6 of the Regulations; and
(ii)Makes a corresponding reduction in the entitlement to the Husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these orders.
(d)Whenever the Trustee of the funds makes a splittable payment out of the Husband's interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in Order 6(a) of these orders in accordance with the requirements of the Act and the Regulations.
(e)This Order have effect from the operative time and the operative time for this Order is four (4) business days after a sealed copy of these orders is served on the Trustee.
(f)As the Trustee has been accorded procedural fairness in relation to the making of these orders, these orders bind the Trustee of the said fund to do all acts and things and sign all documents necessary so as to observe the Trustee obligations under the Act and Regulations.
(g)Each party and each of the Trustees have liberty to apply in relation to the implementation of the orders effecting the superannuation interest of party herein.
UK Pension
7.The parties are to do all acts and things necessary, including executing all documents required to give effect to the following:
(a)The Husband shall within seven days from the date of these orders, instruct Ms AE of AF Lawyers, or another agreed UK-based solicitor, to prepare and lodge a Consent Application and Permission to Apply Application that complies with the requisite legislation, which will have the effect of creating an entitlement to the Wife out of the Husband's interest in AG Trustees Ltd … managed by Bank 1 in the UK, as to 40 per cent to the Wife and 60 per cent to the Husband and that there be a corresponding reduction in the entitlement the Husband would have otherwise had;
(b)The Husband shall instruct the solicitor engaged to provide the Wife with information requested as to the progress of the UK Pension Sharing Application; and
(c)To facilitate the implementation of this order:
(i)Any legal costs associated with this order shall be paid from the funds retained in the Acorn Lawyers Trust Account; and
(ii)The parties shall otherwise bear any and all legal costs associated with this order as to 40 per cent to the Wife and 60 per cent to the Husband with any adjustment between them to be made on final distribution of the Acorn Lawyers Trust Account.
8.The Husband be restrained by injunction from dealing with his interest in AG Trustees Ltd managed by Bank 1 except to comply with these orders.
9.The parties be at liberty to apply on short notice for further or other orders to give effect to the division of the Husband's interest in AG Trustees Ltd managed by Bank 1.
Acorn Lawyers’ Trust Account
10.After settlement of the sale of the AB Street property and after the split of the Husband's interest in AG Trustees Ltd … managed by Bank 1 in the UK, the Husband and the Wife shall do all things and sign all documents necessary to cause the balance of the funds held in the Acorn Lawyers Trust Account to be distributed as follows:
(a)55 per cent of the balance then remaining to the Wife; and
(b)45 per cent of the balance then remaining to the Husband.
The Adjusting Payment
11.In the event that the Wife receives in accordance with these orders (after realisation of her interest in the assets referred to herein) an amount in excess of her 40 per cent entitlement in accordance with Order 1 above (having regard to the Court’s findings as to the balance sheet at [30] of the reasons for judgment dated 16 September 2022 but substituting the realised values in relation to the assets referred to above) then the Wife shall within seven days make an adjusting payment to the husband out of the AB Street sale proceeds account. Thereafter, the amount remaining in the said account shall be the absolute property of the Wife.
Other
12.Within 21 days of the date of these orders, any joint accounts in Australia or elsewhere, not otherwise covered by these orders shall be closed and for the purposes of this order:
(a)Both parties shall do all things necessary and sign all documents to facilitate the closure of any accounts; and
(b)The balance of any accounts, after payment of any fees related to closure, shall be distributed as to 60 per cent to the Husband and 40 per cent to the Wife.
13.Subject to the orders herein, the Husband shall retain all interest in and entitlement to:
(a)All personal property and motor vehicles now in his respective possession or control;
(b)All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in his sole name; and
(c)All interests in life insurance policies and superannuation funds standing in his sole name.
14.Subject to the orders herein, the Wife shall retain all interest in and entitlement to:
(a)All personal property and motor vehicles now in her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in her sole name; and
(c)All interests in life insurance policies and superannuation funds standing in her sole name.
15.The Husband and the Wife shall be liable for and indemnify the other from any obligation that he or she may have regarding any debt or liability, including any taxation liability standing in his or her own name.
General Orders
16.The parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these orders in the time periods prescribed.
17.Leave is granted to the parties to apply to relist the proceedings on 14 days’ notice to deal with any interpretation, implementation and/or enforcement of these orders.
18.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of said party and do all acts and things necessary to validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
19.Pursuant to s 121 of the Act, leave is granted to the parties and their legal representatives to provide a copy of these orders and the reasons for judgment dated 16 September 2022 to any Court or legal representative in the UK for the purposes of giving effect to orders herein.
THE COURT NOTES THAT:
A.The parties have been advised by the Trustee of the UK pension held by Bank 1 that in order for Bank 1 to follow the terms of any court order made outside of England and Wales, in this case a pension sharing order, the court order must be made enforceable in England and Wales.
This 'process' is governed in part by Civil Procedure Rules and Practice Directions (Part 74). The parties note that there are specific requirements set out within the Rules as to the written evidence which must be provided in support of any application in the UK. Once the application has been successful, the Court in the UK will issue a judgment which can then be used by Bank 1 to effect a pension split.
B.The parties have sought advice from a UK-based solicitor, Ms AE of AF Lawyers, in relation to obtaining a UK Pension Sharing Order. The parties have been advised that they will need to file a Permission to Apply Application in the UK together with the equivalent of a Consent Application, attaching a Pension Sharing Annexe, in order to seek to obtain a Pension Sharing Order in the UK. Ms AE is dual accredited for Family Law in UK and Australia and has offices in Suburb AH, QLD.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thukral & Trishna has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Pursuant to orders made by the Court on 1 December 2022 the parties in this matter each provided a minute of proposed orders, the purpose of which was to implement an alteration of property interests as to 60 per cent to the applicant husband (“the husband”) and 40 per cent to the respondent wife (“the wife”).
The document setting out the orders sought by the husband, and his written submissions, are reproduced in the first schedule. The Minute of Order proposed by the wife is reproduced in the second schedule.
Whilst the orders differ in part, the wife expressly, and the husband implicitly, both suggest that in the unusual circumstances of this case, any further order that needs to be made will be interlocutory, or interim, in nature. This Court does not agree. Orders will be made on a final basis that attempt, as far as is possible, to anticipate and address contingencies. It is time to conclude this long drawn-out matter. There will be liberty to relist should there continue to be issues with the implementation of these orders.
The background of this matter, and its particular difficulties, are referred to in the three previous judgments of the Court reported as Thukral & Trishna [2022] FedCFamC1F 572, Thukral & Trishna (No 2) [2022] FedCFamC1F 698 and Thukral & Trishna (No 3) [2022] FedCFamC1F 938 (“Thukral & Trishna (No 3)”).
The advice that both parties obtained from one lawyer about the splitting of the husband’s United Kingdom pension fund (“UK pension”) is inconsistent with this Court’s understanding of the law. The Court’s concern having been articulated, the parties nonetheless propose a United Kingdom (“UK”) pension splitting order in near identical terms. It is Order 1 proposed by the wife, and Order 4 proposed by the husband. The only difference is that in Order 4.2.2 proposed by the husband, he contends that any fees associated with the pension splitting charged by the trustee is to be borne equally between the parties with such payment, if possible, to be paid out of their respective shares in the UK pension. The Court accepts that there is the possibility of a fee charged by the trustee in relation to the splitting, but the apportionment of any such fee should reflect the split, namely 40 per cent to the wife and 60 per cent to the husband. The Court notes that the husband contends that the wife’s split should be 31 per cent rather than the 40 per cent ordered by the Court. It is curious that in a previous iteration of the wife’s minute, she likewise suggested 31 per cent, but has apparently restyled from that in her current proposed order. The Court understands that, in essence, the husband’s concern sought to be addressed by his proposal of a 31 per cent split is that a 40 per cent split would represent an overpayment to the wife which could not otherwise be adjusted back in his favour. In the orders that the Court makes, this contingency is recognised and addressed.
The Court’s intention was that the wife receive a 40 per cent split. The 40 per cent is calculated at the time of splitting, not at the time of reasons for judgment, especially since no orders have yet been made. If the husband’s concern is that the value of the UK pension has fluctuated since the value adopted at the time of the hearing, then both the burden and benefit of this is apportioned by the adoption of a percentage split, and not a fixed sum. The general form of splitting order proposed by the husband is otherwise adopted by the Court.
In relation to the property located at AB Street in City AC (“the AB Street property”), the wife makes no proposal for an order but, the Court infers, does not necessarily adopt that proposed by the husband. The Court will need to therefore assume that she seeks the order for sale of this property in accordance with that submitted in the context of the previous judgment (see schedule B of Thukral & Trishna (No 3)). The difference between the proposals is not significant. However, the material accompanying the husband’s proposed minute reflects his belief that the AB Street property has significantly increased in value. There is no admissible evidence to that effect, nor is there agreement between the parties, but the likely fluctuating values of all of the assets was recognised in the reasons for judgment. The Minute of Order previously provided by the wife in relation to the AB Street property acknowledged that if it sells for more than £200,000, the husband should receive 60 per cent of that amount. Given the consensus between the parties, that is the order that will be made.
The Court notes that in the husband’s material he provides calculations of estimated capital gains tax, but these are nothing more than an estimation, particularly as the actual value will not be established until sale. The orders provide for capital gains tax to be paid by each party individually and in the case of the wife, she may, in effect, draw down from her share of the AB Street property sale proceeds which is established pursuant to these orders. No such provision is made for the husband because it is not clear whether he will have any entitlement to the sale proceeds, as the sale price is not known. The Court is not troubled by this given his superior financial position, and also having regard to the other orders made. In any event, the calculations submitted by the husband suggest that the capital gains tax liability will not be substantial.
In relation to the husband’s interest in Superannuation Fund 1 it is common ground that this be split as to $40,000 to the wife. The order proposed by the wife as set out in schedule B of Thukral & Trishna (No 3) will be adopted.
The final significant asset is the money held in the Acorn Lawyers’ trust account representing the sale proceeds of the former family home. The orders provide for the division of this account, but only after the assets have otherwise been realised to take into account what is described in the orders as the “Adjusting Payment”.
I am satisfied that these orders are as just and equitable as the circumstances of this case permit given the unknown values of the husband’s UK pension and the AB Street property. The Court has had to adjudicate by way of formulating final orders because the parties were unable to themselves. That is no criticism. The delay is regrettable and is entirely attributable to workload pressures of the Court.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 20 April 2023
SCHEDULE ONE
Minute of Orders Sought and Written Submissions by Applicant Father
UK Property
1. That within 28 days from the date of these Orders the parties do all things necessary to list the property situated at and known as AB Street, City AC in the United Kingdom for sale and the parties shall sign all documents necessary with an agreed listing agent to list the property for sale for an agreed figure of not less than 200,00 UK Pounds and the proceeds of sale distributed as follows:
1.1 The balance of principal and interest owing in respect of any mortgage secured upon the said property;
1.2 Agent’s commission on the sale;
1.3 Legal costs and fees relating to the sale and discharge of any mortgage;
1.4 Adjustment of rates and taxes;
1.5 All other expenses which may have been reasonably incurred in respect of such sale
1.6 The balance to be distributed to parties in the ratio as outlined in annexure 1; accordingly:
A sum of UK Pound Sterling 39,865 to the father, representing an add back of £2500 for CGT and 60% share of sale price achieved over £200,000.
Balance to the mother in the amount of £105510 including addback of £4600 for CGT.
2. To give effect to Order 2 for the sale of the AB Street property the following shall occur sequentially:-
2.1 That as to the appointment of a real estate agent (“the agent’)
2.1.1 That within 14 days from the date of the Orders, the Mother shall write to the Father and nominate three (3) real estate agents for the Father to select from; and
2.1.2 Within 7 days of receipt of the Mother's communication in Order 3.1.1 herein, the Father shall respond to the Mother in writing, selecting one of the three (3) nominated real estate agents; and
2.1.3 The Father and Mother shall thereafter sign all such documents as may be required by the agent to give effect to the appointment.
2.1.4 If the estate agent requires any upfront payment for marketing The Property or obtaining any reports like EPC Certificates etc. then this money is to be sent to them from the monies in the Acorn Lawyers Trust Account from the sale of the former matrimonial home situated at F Street, Suburb G (“Trust Account”)
2.2 That as to the appointment of a solicitor/conveyancer
2.2.1 That within 7 days from the appointment of the real estate agent, the Father shall write to the Mother and nominate three (3) solicitor/conveyancers for the Mother to select from; and
2.2.2 Within 7 days of receipt of the Father's communication in Order 3.2.1 herein, the Mother shall respond to the Father in writing, selecting one of the three (3) nominated solicitor/conveyancers; and
2.2.3 The Father and Mother shall thereafter sign all such documents as may be required by the solicitor/conveyancer to give effect to the appointment.
3. The CGT liability for either party is to be paid from the proceeds of the sale of the property as outlined in 1.6 and annexure 1
UK Pension Splitting
4. That the parties are to do all acts and things necessary, including executing all documents required to give effect to the following:-
4.1 Within 7 days from the date of these Orders, both parties shall jointly instruct Ms AE of AF Lawyers, to prepare and lodge a Consent Application and Permission to Apply Application that complies with the requisite legislation, which will have the effect of creating an entitlement to the Mother out of the Father's interest in AG Trustees Ltd managed by Bank 1 in the United Kingdom, of 31% (see Annexure 4) and that there be a corresponding reduction in the entitlement Mr Thukral would have otherwise had; and
4.2 To Facilitate Order 4:-
4.2.1 The legal costs associated with Order 4 herein shall be paid from the funds retained in the Trust Account
4.2.2 Any fees payable to the UK Pension Trustee be borne equally by both parties. These are to be paid in Pounds Sterling and can be paid from their share of the Pension Fund itself, if allowed by the Trustee, or from the Trust Account
Australian Assets
5. That within 7 days of the date of these Orders, the Applicant and Respondent shall do all things and sign all documents necessary to cause the balance of the funds held in the Acorn Lawyers Trust Account from the sale of the former matrimonial home situate at F Street, Suburb G, be distributed as follows: -
5.1.The sum of $50,000.00 be retained in the Acorn Lawyers Trust Account for the sole purpose of facilitating and paying the legal costs associated with Orders 2 and 4 herein;
5.2 45% of the balance then remaining to the Husband; and
5.3 The remainder, being 55% to the respondent Mother
6. That any remaining amount held in the Acorn Lawyers Trust Account upon the conclusion of the processes referred to in Orders 3 & $ herein be distributed in accordance with Orders 5.2 and 5.3, that is:
6.1 45% to the Applicant Father
6.2 55% to the Respondent Mother
7. In accordance with Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to Ms Thukral from his interest in Superannuation Fund 1 …, Ms Trishna is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $40,000.00 and there is to be a corresponding reduction in the entitlement Ms Thukral would have had but for these Orders.
Chattels, Liabilities and other Property
8. That subject to the Orders herein, the Applicant shall retain all interest in and entitlement to:-
8.1 All personal property and motor vehicles now in his respective possession or control
8.2 All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in his sole name.
8.3 All interests in life insurance policies and superannuation funds standing in his sole name
9. That subject to the Orders herein, the Respondent shall retain all interest in and entitlement to:-
9.1 All personal property and motor vehicles now in her respective possession or control
9.2 All shares, debentures, units in unit trusts, bank accounts, building society or credit union accounts standing in her sole name.
9.3 All interests in life insurance policies and superannuation funds standing in her sole name
10. That the Applicant and Respondent shall be liable for and indemnify the other from any obligation that he or she may have regarding any debt or liability,including any taxation liability standing in his or her own name.
General Orders
11. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the timeperiods prescribed
12.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of said party and do all acts and things necessary to validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
13. That pursuant to section 121 of the Family Law Act 1975, leave is granted to the parties and their legal representatives to provide a copy of these Orders and the Reasons for Judgement dated 16 September 2022 to any Court or legal representative in the United Kingdom for the purposes of giving effect to Orders herein.
Notations
A. The parties have been advised by the Trustee of the UK Pension held by Bank 1 that in order for Bank 1 to follow the terms of any Court Order made outside of England and Wales, in this case a Pension Sharing Order, the Court Order must be made enforceable in England and Wales.
This 'process' is governed in part by Civil Procedure Rules and Practice Directions (Part 74). The parties note that there are specific requirements set out within the Rules as to the written evidence which must be provided in support of any application in the UK. Once the application has been successful, the Court in the UK will issue a judgement which can then be used by Bank 1 to effect a Pension split
B. The parties have sought advice from a UK-based solicitor, Ms AE of AF Lawyers, in relation to obtaining a UK Pension Sharing Order. The parties have been advised that they will need to file a Permission to Apply Application in the UK together with the equivalent of a Consent Application, attaching a Pension Sharing Annexe, in order to seek to obtain a Pension Sharing Order in the UK. Ms AE is dual accredited for Family Law in UK and Australia and has offices in Suburb AH, QLD
C. For the purposes of Capital Gains Tax, both parties are non-resident in the UK.
As such, according to the HMRC website, “From 27 October 2021, you must report the disposal online using the UK property service by the 60-day deadline, even if:
you’ve no tax to pay,
you’ve made a loss
you’re registered for Self Assessment
If a property was jointly owned, each owner must tell HMRC about their own gain or loss. You also have to pay any non-resident Capital Gains Tax due within the same 60-day period.”
Both parties acquired the property at different times. The father acquired it in his sole name when he bought Dr AI’s share in Aug 2008He then gifted 50% of his share to the mother in late 2010.
The parties divorced in mid-2021 which is when the Decree Absolute came into effect. The UK financial year ends on the 4th Of April
Background
I make this application in good faith, based on all available information and to the best of my knowledge.
I accept the advice given to me by Ms AE of AF Lawyers as quoted in Notation B.
I am personally aware of 2 UK parties who underwent a similar process recently. However, I have not been given permission by Ms AE to include her correspondence with myself in these proceedings as I have not retained her in the matter.
If I were to retain her for this matter, it would then exclude her from being able to be jointly instructed by both parties for the main purpose of obtaining a Pension Splitting Order in the
UK. Since that task is of paramount importance and there are not too many dual accredited lawyers in Australia I have taken the precaution of not hiring her services myself.
The costs involved with selling the UK property are of course variable. I have taken steps to obtain figures based on quotes and personal recommendations from friends and internet searches. These are summarised in the attached document titled “Figures for AB Street
Way” and attached as annexure 1
The issue of Capital Gains Tax is more complex. Without a final sale price, all figures are at best, estimates. The second best option would be to put the property on the market which would give us a Guide Price if not an actual figure. I have asked the mother on multiple occasions to do this but have had no response. Properties in the UK can take 4-6 months to settle and often the final sale price achieved is lower than the asking price. The figures for parties are attached as Annexure 2 and 3
The CGT depends on the number of years the property was held by the individual, the capital gains over the period, the cost base, cost of repairs etc. UK tax year will end on April
4, 2023. So, a sale after this date, will likely lower the CGT liability. This could of course be offset by any increase in the Property price itself. I have used the official calculator to calculate the CGT liability for both parties. This calculator can be found here:
have provided these figures to the mother via an email to her lawyer on 11/12/2022. The mother has neither confirmed nor disputed my figures.
Lastly, I am simply not aware of any other method by which to split the property in the ratio of 60:40 in favour of the father as per His Honour’s Judgement delivered on 16 Sept 2022.SCHEDULE TWO
Minute of Orders Sought by Respondent Wife
UK Pension Splitting
1.That the parties are to do all acts and things necessary, including executing all documents required to give effect to the following: -
1.1The Husband shall within 7 days from the date of these Orders, instruct Ms AE of AF Lawyers, or another agreed UK-based solicitor, to prepare and lodge a Consent Application and Permission to Apply Application that complies with the requisite legislation, which will have the effect of creating an entitlement to the Wife out of the Husband's interest in AG Trustees Ltd … managed by Bank 1 in the United Kingdom, of 40% and that there be a corresponding reduction in the entitlement Mr Thukral would have otherwise had; and
1.2The Husband shall instruct the solicitor engaged to provide the Wife or her Australian legal representative with information requested as to the progress of the UK Pension Sharing Application; and
1.3 To facilitate Order 1 herein:
1.3.1The legal costs associated with Order 1 herein shall be paid from the funds retained in the Acorn Lawyers Trust Account; and
1.3.2The parties shall otherwise equally share any and all legal costs associated with Order 1;
2.The Husband be restrained by injunction from dealing with his interest in AG Trustees Ltd managed by Bank 1 except to comply with these Orders.
3. That the parties be granted leave to relist the matter on short notice.
4.That the parties be granted leave to file further terms of consent in chambers to give effect to His Honour's Judgement upon the resolution of the UK Pension Sharing matters referred to herein, with the overall effect to be a 60/40% split in favour of the Husband of the net assets including superannuation (and UK pension).
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