Is there a minimum amount I need to owe before I can go bankrupt?
No. You can become bankrupt voluntarily owing any amount; however the Official Receiver in Bankruptcy can reject your request to become bankrupt under certain circumstances. A creditor cannot make you bankrupt unless the debt is $5,000 or more.
Can a creditor make me bankrupt?
Yes, if you have a debt for $5,000 or more, a creditor can make you bankrupt. The creditor can apply to the Federal Court or Federal Magistrate's Court to have you declared bankrupt by sequestration order.
If you have a debtor who owes you $5,000 or more, and you have received a judgment or order in your favour you can commence bankruptcy proceedings. A Bankruptcy Notice (Form 1) is to be issued to the debtor. This gives the debtor 21 days to pay the debt. Non payment is an act of bankruptcy from which an application to the Federal Court or Federal Magistrate's Court can be made to have the debtor declared bankrupt by sequestration order.
How long would I be bankrupt?
The period of a bankruptcy is 3 years and one day from the date a statement of affairs is filed. This period may be extended by an objection entered by the trustee.
Objections will extend bankruptcy
To 5 years from the date of filing a statement of affairs if a bankrupt:
made a void transfer against the trustee because of Section 120/122 of the Bankruptcy Act 1966 (under valued transactions and preference payments)
continued to manage a corporation
engaged in misleading conduct and amount exceeds XXX (please see Current Amounts)
fails to disclose to the trustee, a liability that existed at the date of bankruptcy
fails to notify a change of address or daytime telephone number
fails to advise the trustee of any material change to the information disclosed on their statement of affairs
fails to attend a creditors' meeting without written approval from the trustee
fails to attend an interview or examination
fails to disclose any beneficial interest in any property
To 5 years from the date of returning to Australia:
leaves Australia without the written permission of the trustee and does not return
To 8 years from the date of filing a statement of affairs if a bankrupt:
made a void transfer against the trustee because of Sections 121;128B and 128C of the Bankruptcy Act 1966 (transfers to defeat creditors)
fails to provide details of property and income when requested
after the date of bankruptcy, the bankrupt deliberately provided false or misleading information to the trustee
fails to disclose detail of income or expected income
fails to pay contributions as assessed
fails to adequately explain how money was spent or assets were disposed of
fails to disclose to the trustee, a liability that existed at the date of bankruptcy
fails or refuses to sign a document when required
intentionally failing to disclose to the trustee, a beneficial interest in a property
To 8 years from the date of returning to Australia
fails to return to Australia when requested to do so by the trustee
I've had a car accident and the owner of the other car is pressing me for costs of repairs. Will the debt be covered in bankruptcy?
Debts which arise from being involved in a motor vehicle accident where you have not legally admitted liability are known as un-liquidated damages and are not provable in bankruptcy. The debt is covered by bankruptcy only if a court judgment has been obtained, or you have admitted responsibility for the debt in writing to the other party or its solicitor/insurer and have received documentary evidence that such admission has been received by the other party or its representatives, or started paying for repairs prior to bankruptcy.
Will my bankruptcy affect my partner?
In some circumstances your partner will be affected. Where your partner is solvent (non bankrupt) and is jointly liable for the debts, the creditor will continue to pursue them for payment. Your partner will still be liable for the debt. If you & your partner have joint assets, your interest in the asset will vest with the trustee and will be sold.
Will I lose my house?
Real property is an asset. A property or share of a property held by you will vest with the trustee at the date of bankruptcy. The trustee has to deal with any equity or interest you have in a property, for the benefit of your creditors. This may mean that the property has to be sold. If the property is jointly owned the trustee may consider selling its/his/her interest in your property to a non-bankrupt joint owner. A house property that is subject to a Defence Service Homes mortgage cannot be sold by the trustee without the approval of the Secretary of the Department of Veterans' Affairs. Defence Service Act 1918. A secured creditor could sell your property should you be unable to meet the mortgage repayments. Any shortfall will be a debt in your bankruptcy. If a surplus exists following sale, these monies will be paid to your trustee.
What happens if I have transferred my house or another asset of value to my spouse prior to bankruptcy?
The trustee has the power to void transactions made within a period of 5 years prior to the bankruptcy. The trustee will investigate the transfer and may recover the asset if the transfer was consideration for the transfer was less than the market value.
If a transfer in a defined (generally 6 months) period prior to bankruptcy had the effect of giving a creditor a preference over other creditors, then that transfer will be void against the trustee.
Further, transfers of property, or a contribution to a superannuation fund, will be void against the trustee regardless of when the transfer was made prior to bankruptcy if that transfer or contribution was made to defeat the interests of creditors.
It is also important to note that disposing of property prior to bankruptcy with intent to defeat your creditors may constitute an offence under the Bankruptcy Act.
Can I keep my car?
Once you become bankrupt, vehicles which are used mainly for transport (eg. car or motor bike), are protected and can be retained by you where your interest in the vehicle is less than the prescribed amount. Where the interest in the vehicles are valued at more than the prescribed amount, the trustee is required to sell, and give back to you the value of the prescribed amount and retain the balance for the benefit of your creditors. If the vehicles are jointly owned by two bankrupts the relevant value is double the prescribed amount. (see current amounts to determine the amount for a vehicle used for transportation under s116(2)(ca). This amount is adjusted in accordance with the Consumer Price Index).
What are my rights and responsibilities once bankrupt?
Your rights
You have the right to be treated justly and fairly by the trustee of your bankruptcy.
Your responsibilities
You have an obligation under the Bankruptcy Act to co-operate with your trustee and respond to all reasonable requests for information about your affairs made by the trustee. Whilst you are bankrupt you have an ongoing obligation to keep your trustee fully informed of any changes in your circumstances regarding such things as your current address, your employment/level of income, your marital status and dependents, receipt of lottery win or interest in a deceased estate.
Overseas Travel
Any person who is an undischarged bankrupt must obtain written permission from their trustee to leave Australia. As soon as you become aware that you may need to leave Australia you should write to your trustee well in advance of the proposed departure with the following details:
reasons for departing Australia
dates of departure and return
details of the itinerary and any overseas contact details
particulars about who will fund travel costs
any documentary evidence supporting the request eg confirmation by an employer of the need to
travel, confirmation of payment of costs by a third party
It is an offence to leave Australia without the written permission of your trustee and your bankruptcy can be extended.
Are there offences under bankruptcy?
Yes. The most important are listed below:-
disposing of property before bankruptcy with intent to defeat your creditors
failure to disclose assets
the deliberate obtaining of credit when you know you cannot pay
gambling and speculation which results in bankruptcy
incurring debts during bankruptcy for over a set limit* without disclosing that you are bankrupt (for limit see Current Amounts)
operating a business under an assumed name, without advising your bankruptcy
leaving Australia without the trustee's permission
failure to notify trustee of changes to name, address or contact telephone numbers.
The penalties for these offences vary from 6 months to 3 years imprisonment upon conviction.
What happens to my superannuation if I am bankrupt?
Funds held in and payments made from your superannuation are protected from your creditors under the Bankruptcy Act. In certain limited circumstances you may be able to access your superannuation early, such as severe financial hardship.
However, the fact you are bankrupt does not mean that you will automatically be entitled to get early access to your superannuation. Bankruptcy is not on its own a ground for the early release of your super. It is up to your superannuation provider, not ITSA, to decide whether to grant early access to your super and they should be consulted if you believe you have grounds for early release of your funds.
If you are granted early access to your super the payments from your superannuation fund made on or after the date of bankruptcy will be protected from your creditors.
Obligations during the period of your bankruptcy?
Change of name or address
You are required to notify your trustee of all changes of name and/or address.
Overseas travel
If you wish to travel overseas you must obtain the written permission of the trustee administering your estate who may impose conditions of travel. You may have to surrender your passport to your trustee.
Change in income during bankruptcy
You must notify your trustee of any change in your income especially if your new income is close to certain income threshold limits.
Changes in assets during bankruptcy
You must notify your trustee if you inherit any property, win money or otherwise receive any assets while you are bankrupt.
Cooperating with your trustee
You must cooperate with your trustee and provide information when requested. You may also be asked to attend meetings, or answer questions at an examination under oath. If you fail to cooperate with your trustee, your period of bankruptcy can be extended under certain circumstances.
If your bankruptcy is being managed by the Official Trustee (ie ITSA), you can access forms for change of address and overseas travel requests online.
If your case has been assigned to a Registered Trustee, you need to contact them directly when your circumstances change.
http://www.itsa.gov.au/dir228/itsaweb.nsf/docindex/bankruptcy-%3Efaq
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