two business partners working

What happens if my business partner suddenly buys a Porsche with company money and then disappears with the partnership's chequebook? (or Why you need a documented Partnership Agreement)

General Partnerships have Unlimited Liabilities

When people make the decision to go into business together, one important yet often overlooked consideration is how best to establish and document the legal relationship between them.

While one of the key benefits of a general business partnership is that it allows the Partners to pool their respective skills and resources (skilled labour, financial resources, business relationships, equipment, etc.) they also need to address how to manage the risks of unlimited personal liability, for the other partners' actions.

Read more …

What is a Business Partnership Agreement?

A Partnership Agreement is a documented contract between the partners of a business that outlines the agreed terms of the business and how it will operate under two or more people.

When would I need one?

You have a friend or professional colleague. Together, you have a vision so you work together in your new business to make a profit. Congratulations, you are in a partnership. Now that you are in a partnership, you need to document it. If you're looking for a future business partner, understanding the benefits of a documented Partnership Agreement will make you a better future business partner too.

What's in a Partnership Agreement document?

A documented Partnership Agreement is a written contract between the partners that clearly outlines roles, responsibilities, and how the business will be run between two or more people. 

A Partnership Agreement deals with:

  1. financial reporting responsibilities
  2. agreed to responsibilities of the partners
  3. each partner’s financial contribution – (called capital contributions)
  4. an agreed procedure for resolving disputes
  5. an agreed procedure for ending or resigning from the partnership
  6. a partner’s share of the business’s tax losses are offset against other personal income (aka the ‘flow through’ effect).

Not having a documented Partnership Agreement is high risk

We all love the simplicity of a partnership. Indeed, many people are in a ‘partnerships’ without their knowledge. But such undocumented partnerships are dangerous.

If you do not document your partnership, you can suffer significant risks and face potential losses because a general partnership carries the risk of joint and several liabilities of you and your partners.

Insight: An undocumented business partnership is dangerous. Missing this step may even disqualify you from participating in a bigger supply chain as many significant businesses reliant on consistent supply, will usually require a capacity statement to confirm a supplier's business stability and continuity is in place, before accepting you as a supplier.

What are the rules if you don't have a written Partnership Agreement in place?

In Australia, each separate state or territory has its own legislation regulating undocumented Partnerships. If you have no written partnership agreement in place, then you have to rely on out-of-date legislation in each state — (and good luck with that).

You can find the different state-based-partnership legislation below;

Advantages of a Partnership Deed

  • Simple– when compared to a trust or company
  • Cost less to set up – than a company or a trust (where partners are all individuals)
  • Inexpensive to run – no ASIC yearly fees like a company
  • Less paperwork – no reporting obligations to ASIC
  • Easy to understand
  • Losses flow straight to the partner – losses are distributed to the partners; in contrast, losses are trapped in a family trust, unit trust, and company
  • Low regulation and privacy – companies are over-regulated through the government agency ASIC. Partnerships (like trusts) are less controlled by the government

Disadvantages of a Partnership Deed

  • The partners are jointly and severally liable. That means each partner is liable not only for their own share of the partnership debts but also those of all the other partners. Unlimited liability means each partner is liable for the entire partnership’s debts. Let us be very clear: even if a person only had a 10% partner’s share, he or she is responsible for all 100% of the damage arising from the negligence if the other partners do not have the means to pay.
  • Unless you are a Partnership of Family Trusts there is no asset protection for each partner.
  • Changing of ownership is difficult. It usually requires a new partnership deed to be established. There may be transfer (stamp) duty and Capital Gains Tax (CGT) issues. This is when assets are moved from one partnership to another.
  • When a partner dies you have a new partnership so transfer duty and CGT may operate.

Case Study

Partnership Agreements | Jonathan and his 2 brothers' Story

Jonathan business CFO, and his two brothers

Jonathan and his two brothers are part owners in a truck repair workshop. He is the company's CFO and his brothers manage the business.

One morning Jonathan woke up with an unusual numbness in his arm but simply thought he’s slept on it during the night. Within hours he was in the hospital unable to move or speak. He’d suffered a mild stroke during the evening.

After the initial shock, the uncertainty of this situation soon began to concern his brothers and their families and how this situation would impact their family business. They had recently become guarantors for the business loans and with Jonathan off sick, the future looked precarious.

Doctors said the stroke would need rehabilitation and that he would be unable to drive for the next few months until they had determined the level of his physical and mental impairment.

With Business Risk Protection in place, this is what happened:
  • Keyperson insurance cover was in place and immediately paid the company a set amount of money to employ a contract CFO to replace Jonathan.
  • Loan protection was in place and paid the company a set amount of money so the business debts were immediately reduced by a third.
  • If Jonathan was expected to be off work for the long term, they had an agreement in place about long-term illnesses amongst the owners and how it will be dealt with, and how they would value the business in case the sick owner and their family needed to prepare for an exit from the business.

With an effective plan in place, creditors felt secure that the business was stable and able to continue to trade successfully.

Key Take Away:

If you’re part of a Partnership or in business with other people (especially different family members), you need clarity about these issues and how they will affect you and your family and a documented Partnership Agreement to make it legal.

Frequently Asked Questions about Business Partnership Agreements

What is the difference between a Partnership and a Joint Venture?

Like a Partnership, a Joint Venture is a relationship between two or more parties, but unlike a partnership, each party retains its separate identity.

  • A Partnership shares profits or losses between themselves. For example, a profit of $500K was made and now shared (distributed) in proportion to the Partnership Interest.
  • A Joint Venture shares output. For example, a successful computer hardware recycling venture was created and as agreed, the rare minerals belong to one party and the plastics belong to another party. The output is shared, not the profits.

A joint venture is often put together for a specific one-off purpose and therefore, unlike a partnership, joint ventures often have a short life and are often focused on short-term, one-off or isolated transactions.

How do I close a Partnership relationship?

Whatever the reason for dissolving a Partnership, a Dissolution of Partnership Agreement must be signed to legally end a partnership and terminate the legal liabilities that all partners were liable for. We can also provide that legal document.

How we can help

Partnership Agreements are an important part of protecting your business and your family, from the business.

  • We can supply this legal document.

Contact us for a confidential chat about your needs.

Related: Key Legal Documents for Business Owners

tub of crispy fried chicken and its secret recipe

Non Disclosure Agreements — the value of keeping secrets in business is not chicken feed

Have you ever wondered what are the ‘11 Secret Herbs & Spices’ of the Kentucky Fried Chicken (KFC) recipe?

Deeper Dive Article

Do you know the reason why Colonel Harland David Sanders, the American businessman best known as the founder of the international brand KFC, (or just ‘The Colonel’ to his customers), chose not to formally patent the secret signature taste of the brand KFC, but rather used a Non-Disclosure-Disclosure Agreement?

The answer lies in the fact a patent is a publicly registered document of an invention, design, concept or composition that could be used by unscrupulous people to replicate a particular invention, design, concept or composition.

Read more …

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