NSW Separated for 23 Years - Property Settlement Between Parents?

[gem]

I'm posting a question in regard to my mother and father and need some clarification.

My father walked out on my mother 23 years ago but has still remained married to her all this time with no property settlement as of yet! (Crazy I know). She has maintained the "marital" home all this time, paying all the council rates, etc., from her personal funds. My mother has been alone all since then still mending her broken heart.

My father has since moved on and has been in a de facto relationship for 20 or so years with a woman 20 years younger and has acquired a home with this woman. This we know of due to a bit of investigative work (the house is not in his name though), but he doesn't know that we know as he will refuse to communicate any of his new life to me or my mother. I also am 95% sure that he has a child under 13, another thing he refuses to communicate to us about.

As my father is nearing retirement, I feel that he will want to get his "half" so to speak and was wondering what my mother should be doing now in preparation to when that happens. Her working days are pretty much gone at the age of 71 and she feels helpless as what to do in regard to the future.

Hope I am posting in the right section.

Thanks in advance.

 

[AllForHer]

Step one is to file for divorce.

First, assets automatically go to next of kind if she doesn't have a will. That's the husband if they're still married. It would be a good idea go get a will written, in any case.

Second, a person has up to 12 months after a divorce is finalised to file for a property settlement. If he has limited communication with her to this point, there is a reasonable chance he won't pursue a property settlement, particularly because he would no doubt know that she would be entitled to some of his assets also.

Thus, she needs to file for divorce to get that timeframe over and done with so a property settlement is no longer a risk. While ever they remain married, her assets and his assets would be considered as part of the joint asset pool if a property settlement were to be pursued.

You don't need his consent to file for divorce. They need to have been separated for at least 12 months, and if she's unable to locate him to serve documents, she can file for a discharge of service, meaning the court may allow her to not have to serve the divorce applicational her husband.

 

[gem]

Step one is to file for divorce.

First, assets automatically go to next of kind if she doesn't have a will. That's the husband if they're still married. It would be a good idea go get a will written, in any case.

Second, a person has up to 12 months after a divorce is finalised to file for a property settlement. If he has limited communication with her to this point, there is a reasonable chance he won't pursue a property settlement, particularly because he would no doubt know that she would be entitled to some of his assets also.

Thus, she needs to file for divorce to get that timeframe over and done with so a property settlement is no longer a risk. While ever they remain married, her assets and his assets would be considered as part of the joint asset pool if a property settlement were to be pursued.

You don't need his consent to file for divorce. They need to have been separated for at least 12 months, and if she's unable to locate him to serve documents, she can file for a discharge of service, meaning the court may allow her to not have to serve the divorce applicational her husband.

Thank you for clarifying that!

One good thing that my mother did was to make sure that her half of the house went to me if she died before him. He was reluctant to do this but the "family" solicitor told him that it was in the best interests for his child (meaning me). He has recently asked her for some money as they still have a joint account from way back with about 20 grand or so in it (another crazy thing to add to the list).

This is only the start of things I feel and I'm worried about it as her attitude is "well I got to live in this house for all these years" and "I've had a good run", etc.

 

[AllForHer]

I doubt she would lose the house, even if it did end up under consideration in a property settlement. The court must make orders that it determined to be just and equitable.

Did he pay child support, out of interest?

 

[gem]

I doubt she would lose the house, even if it did end up under consideration in a property settlement. The court must make orders that it determined to be just and equitable.

Did he pay child support, out of interest?

He left the year after I finished school. They both helped me pay off some of my uni fees via the joint account where only 20 is left. My father did say to my mother years ago that his half of the house is his "super" so there will be a D-day.

I just want my mum to know her options. In saying that there is no way in hades that she will file for a divorce, it will be his move so to speak. She says that she "doesn't want to rock the boat".

 

[AllForHer]

Well, legal advice will tell him that she may be entitled to half of all the assets he has acquired since their separation because they never divorced, so he may not wish to rock the boat either, even if he suggests otherwise to your mum. Property settlements take into account all assets owned by both parties *on the day of settlement*, not the day of separation.

Without actioning a property settlement or divorce, this is going to be a matter of 'wait and see'. If he chooses to bring proceedings, then I would organise an appointment with Legal Aid to discuss options. In the meantime, just ensure her will is squared away properly.

 

[gem]

Thank you for your help as I have not sought after any advice before. I really wish they would settle in a way because I am loathed to think of what will happen if either one of them die as I'm not legal savvy in any way. I feel that his partner is tightening the screws as he is asking for money now and I'm sure she thinks that there is half a "Sydney" house coming her way.

Does it matter that the newly acquired house is in her name rather than his or in joint names (meaning his de facto's house)? This particular house was bought about 10 or so years ago.

 

[AllForHer]

So, the Court asks four questions when it's determining a property settlement:

1. What is the total value of the joint asset pool?
2. What are the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?

How each of these questions is answered is what determines the outcome, so it may be the case that the house acquired 10 years ago may be included in the shared asset pool if, for example, it was acquired using funds that your mother had some interest in, or if not doing so would significantly disadvantage your mother in comparison to your father.

It's impossible to predict, unfortunately, but this is definitely not a matter of him just automatically getting 50% of the house she's living in. Their circumstances and future needs have changed dramatically in that time - if the house is the only asset the court considers, then her financial and non-financial contributions over the past 20 years would be significantly higher than his, and as an elderly woman living on her own, her future needs would likely be given more weight than his, because he has the fiscal support of a new spouse as well as other assets to which he is entitled.

This has not come up in this thread so far, but you may wish to discuss with your mum the prospect of granting you enduring power of attorney, which enables you to make decisions on her behalf should she become incapacitated from doing so (such as in through illness). With it being enduring, it also means you can manage her financial affairs posthumously, and you will be better positioned to protect her assets in the event your mum's health declines or in the event of her passing.

 

[gem]

So, the Court asks four questions when it's determining a property settlement:

1. What is the total value of the joint asset pool?
2. What are the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?

How each of these questions is answered is what determines the outcome, so it may be the case that the house acquired 10 years ago may be included in the shared asset pool if, for example, it was acquired using funds that your mother had some interest in, or if not doing so would significantly disadvantage your mother in comparison to your father.

It's impossible to predict, unfortunately, but this is definitely not a matter of him just automatically getting 50% of the house she's living in. Their circumstances and future needs have changed dramatically in that time - if the house is the only asset the court considers, then her financial and non-financial contributions over the past 20 years would be significantly higher than his, and as an elderly woman living on her own, her future needs would likely be given more weight than his, because he has the fiscal support of a new spouse as well as other assets to which he is entitled.

This has not come up in this thread so far, but you may wish to discuss with your mum the prospect of granting you enduring power of attorney, which enables you to make decisions on her behalf should she become incapacitated from doing so (such as in through illness). With it being enduring, it also means you can manage her financial affairs posthumously, and you will be better positioned to protect her assets in the event your mum's health declines or in the event of her passing.

She wisely did make me the power of attorney about 5 years ago...

When you say that "if" the house he acquired 10 years ago using funds that my mother had some interest in could matter or not would mean nothing then as her money did not go into this? I'm a bit confused by what you mean here, as I said before I am legally illiterate lol.

Another interesting bit of info that I don't know is of any relevance to her future case or not is that she has been diligently paying my father's private health care for the past 23 years. She said she is doing this as she is living "rent free" in the marital home.

It's a crazy drama, and it's something which has left me baffled for 2 decades and this is the first time I am reaching out for advice as she won't...being an only child doesn't make this any easier for me as I have no one to console with.

 

[Arche]

Hi gem
Just to clarify, enduring power of attorney "endures" if a person loses capacity, not after death. Managing financial affairs after a person's death becomes the role of the executor-which can also be you if your mother has made you executor in her Will.

If it's any consolation, as an only child there is no one to fight with either!