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QLD Bankruptcy and Consent Orders (Property)

Discussion in 'Family Law Forum' started by Kscib, 25 January 2015.

  1. Kscib

    Kscib Active Member

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    I have filed an initiating application with Federal Circuit Court for property orders. The interim order is to be heard on the 18th February. It is for property orders only. I have received advice from the respondent (however truthful I'm not sure) that he will be filing for bankruptcy on the 3rd February, prior to our initial court hearing. We currently live in mortgaged properties that are subject to the Property hearings in court. The house he lives in has my name on the mortgage. If he files for bankruptcy, they will obviously take his mortgaged property, plus as my property is security for that mortgage the mortgagor takes my house as well.

    Interim orders were being heard as a matter of urgency already due to the houses almost being repossessed on Christmas Eve.

    Is there anything I can do to 'hold' the respondents bankruptcy until our initial Court date? The respondent works in a high paying job in the mines, and I am confident he can maintain his debts. I assume Consent Orders can still be heard in Court, there is just less to divide?
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Kscib,
    Frist, how will postponing the bankruptcy filing assist your application at the Federal Circuit Court, and in particular, with your interim hearing (what will this interim hearing be on? Is it merely an interlocutory application for procedural matters?)

    Second, if the properties are subject to your court application, even if the respondent files for bankruptcy, they will not be able to deal with your property until your court hearing is finalised. All the bankruptcy application will do in this case, is substitute the "owner" of the property from the respondent to the trustees in bankruptcy (or the bank). This means that your application will then need to join the trustees in bankruptcy (or bank) as respondents, as they are now the owners of the property.

    Third, if the house the respondent lives in has your name on the mortgage, then you have a property interest in the property (where you are not the owner). This means that if, or when, the trustees in bankruptcy seize his assets on behalf of his creditors, they will need to apportion you your share of the property. You can request to purchase the remaining portion (i.e the respondent's share in the house) or you can ask for a payout. In any event, your interest should not be ignored. These are just my general thoughts.
     

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