What you need to know about bankruptcy
Considering sorting your debt and getting a fresh start by declaring bankruptcy? Here's what you need to know first.
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If you find yourself unable to repay your debts, you can apply for bankruptcy as a final resort. If you're considering declaring bankruptcy or entering into a debt agreement, you'll need to consider your options and speak to a financial counsellor to ensure it's the best choice for you. You can use this guide to understand how bankruptcy works and the consequences it will have on your finances in the future so that you can make a more informed decision.
Free financial counselling
If you would like financial counselling you can call the National Debt Helpline on 1800 007 007. It is open from 9:30am to 4pm, Monday to Friday.
Bankruptcy is the legal state that absolves you from paying your debts. You can apply for bankruptcy in two ways: the first is through a debtor's petition which is involves applying for bankruptcy yourself. The second involves you being forced into bankruptcy through the courts, which is called a sequestration order. In both cases, a trustee is appointed to manage your finances. A trustee can sell certain types of assets you own, take any income you earn over a certain amount and investigate your financial affairs.
Once you declare bankruptcy you’re released from your debts. If you have a secured debt like a mortgage on a property, the asset can be sold to repay your debts. If you have an unsecured debt like a credit card or personal loan, assets like your house or car cannot be repossessed.
Before you enter bankruptcy, you may consider a Declaration of Intention.
A Declaration of Intention (DOI) gives you 21 days to decide whether you want to declare yourself bankrupt or take out a debt agreement or Personal Insolvency Agreement (PIA). Creditors with unsecured debts are prevented from taking action during the DOI period. Your creditors are alerted when you lodge a declaration of intention and they’re provided with information about your finances. A DOI is not an act of bankruptcy and your name is not recorded on the National Personal Insolvency Index. At the end of the 21-day period, if you haven’t entered into a formal arrangement, creditors can take you to court and force you into bankruptcy.
How long does bankruptcy remain on your credit report?
The most current information states that bankruptcy stays on your credit report for at least two years from the date of discharge before it’s deleted.
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A bankruptcy listing on your credit report will also lower your credit score, which will make it harder to apply for products like credit cards, loans and mortgages in the future. The laws around bankruptcy and reporting do change, so keep an eye on government sites like the Australian Financial Security Authority (AFSA) for the latest information.
Before you declare bankruptcy it's important to speak to a financial counsellor for free personal advice about dealing your debt. You may be able to organise alternative payment plans with your creditors or create a budget with the help of a financial counsellor. If your options are exhausted, you may decide to enter bankruptcy or be made bankrupt by the courts.
Voluntary bankruptcy: Debtor’s petition
You can apply for bankruptcy by completing a debtor's petition form, which is available on the AFSA website. This includes signed acknowledgement of prescribed information and a statement of your affairs. You'll need to complete and lodge the debtor's petition with the Official Receiver within 28 days of signing the forms. You'll need to provide details of your debts, income and assets to a trustee. Your trustee can be the Official Trustee (AFSA) or a registered trustee (which you can nominate if you have a preference).
Your trustee will notify creditors that you're bankrupt and they can sell assets to help cover your debts. You may also need to make compulsory payments if your income exceeds a set amount. This amount changes twice a year, so check out the AFSA website for the latest numbers.
Involuntary bankruptcy: sequestration order
If you owe more than $5,000 to a creditor you can be asked to attend court and be forced into bankruptcy. A creditor can issue a sequestration order if they’ve gotten a court judgement against you in the previous six years. You are generally given a 21-day period to pay your debts before the court hearing and have a chance to be heard by a judge before the actual court date. If you can’t pay your debts in this period, the court will issue a sequestration order declaring you bankrupt and a trustee will be appointed to manage your case.
If your bankruptcy application is accepted, you'll receive a confirmation with an AFSA administration number.
When does bankruptcy end?
The length of your bankruptcy will depend on your situation, but can last from three to eight years.
- Debtors petition bankrupts. If you became bankrupt by presenting your own petition, you'll be due for discharge three years and one day after filing your petition with the AFSA.
- Sequestration order bankrupts. If you were made bankrupt by an order of the court, you are due for discharge three years and one day after your complete statement of affairs was accepted by the AFSA.
- Exceptions for all bankrupts. In some cases, bankruptcy can be extended to five or eight years if your trustee lodges an objection to your discharge.
Once you're discharged, you're no longer considered bankrupt. However, your name remains on the National Personal Insolvency Index (NPII) permanently and your bankruptcy listing will remain on your credit report for 5 years from the date you became bankrupt or 2 years from when your bankruptcy ends (whichever is later). This means that creditors will see that you've been bankrupt when you apply for loans or a credit card, which could reduce your chances of approval.
Declaring bankruptcy can help you get a fresh start with your debts, but it can also impact your income, employment and ability to access credit in the future.
- Income, employment and business. If you earn over a set amount, you'll need to make compulsory payments to your trustee. You'll also need to keep your trustee informed if you change jobs, receive an income increase or decrease or stop working. Bankruptcy can also pose limitations if you're operating as a sole trader, managing a trust account and if you're a director or manager of a company.
- Access credit. As mentioned, bankruptcy will remain on your credit report 5 years from the date you became bankrupt or 2 years from when your bankruptcy ends. This will also lower your credit score and decrease your chances of approval when applying for loans and other lines of credit card. For example, Australian credit card issuers only approve applicants with a good credit history and no evidence of bankruptcy. However, you may be able to compare bankruptcy loans and other lines of credit designed for applicants with bad credit.
- Travel overseas. Before you travel overseas, you'll need to request permission from your trustee. This is because travelling overseas without written consent is considered an offence if you're bankrupt.
- Assets. Your trustee may be able to sell assets including your house or property, which you must declare when you apply for bankruptcy. You're able to keep ordinary household goods, tools up to a set amount that are used to earn an income and vehicle(s) up to a specific amount.
- Listed on NPII. You'll be listed on the searchable public register National Personal Insolvency Index permanently.
Before you declare bankruptcy, you can consider the following options to get your debts under control.
A debt agreement is an agreement between yourself and your creditors that you will repay your debts. It essentially freezes interest on your accounts and gives you time to pay off your debt. While this may seem like a convenient option, it's important to note that a debt agreement is an act of bankruptcy and will be noted as such on your credit report.
Think about the following if you’re considering a debt agreement.
- Not everyone can get a debt agreement. There are income limits and other eligibility requirements.
- Secured creditors may still claim debts.
- A debt agreement ends when you pay out the contract or if the agreement is terminated by the courts or creditors.
Your name is permanently recorded on the NPII and the debt agreement is listed on your credit report for five years from the date the agreement was entered into or two years from the date the agreement was terminated or declared void.
Any insolvent Australian resident can apply for a Personal Insolvency Agreement (PIA). This is not like a debt agreement, which has income and debt eligibility requirements. But like a debt agreement, when you appoint a trustee to manage your financial affairs, you’re committing an act of bankruptcy and this can be used in formal proceedings to make you officially bankrupt. The listing is recorded on your credit report for five years from the date the agreement was entered into or two years from the date the agreement was terminated. Your name will also remain on the NPII permanently.
Informal debt agreements
An informal debt agreement is an arrangement to pay back a lender outside the terms and conditions of your original contract. It doesn’t involve the court and you’re not declaring yourself bankrupt. It’s important to seek financial advice if you want to enter into an informal debt agreement. Some companies specialise in helping you set up and run informal debt agreements. For example, Fox Symes offer informal debt agreement services and can work with you to get your debts back under control.
If you default on a payment of $150 or more by more than 60 days, it will remain on your credit report for five years. If you've defaulted on a payment but made arrangements with the lender to pay it back in a manner that's different to the original terms and conditions, it will stay on your report for two years from the date the creditor listed the default to credit reporting body.
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