WA Could i regret helping

[sammy01]

yep and look, to be fair, most punters on a site like this probably come from the bad end of town when it comes to break ups. I was in a similar situation, the house sold, the ex was refusing to move out because she couldn't find a rental. I was thinking of renting something to put a roof over the kids heads. BUT since I spent 10's of thousands of $$$ just to see the kids I made the call that I'm not prepared to save her from her own mistakes... But if you guys are getting on well enough, then I'd suggest you make sure there is a rental agreement etc etc.

 

[J hus]

Yeah we get on well enough. I just fear that if i dont try help out, that the kids may have to go live with their dads ie the boy to me and daughter to her dad. Even the ex said that its not fair on them being unsettled and thats what she wud have to look at. And ya know i wudnt wish that on the kids to be seperated from their mum or each other. But its also killing 2 birds with one stone like i need to find boarders for the house anyway.

 

[Atticus]

Im wanting to know legal facts not just what someone "reckons".

The facts as you have presented them is that you lived together for 5 years in your house, which is a sizeable property (your words) you have a child together, you have only been separated 14 mths ... you " let her have the furniture and appliances, as well as a business and 2 cars and some money to pay the bond at the rental to get her started"..... You have no formal property settlement in place finalising things & now you are entertaining the idea of moving her & kids back into the main residence of your property...

You asked " Could I regret helping" .. Damn right you could. There are alarm bells & land mines everywhere in this scenario.. No rental agreement is going to trump her right to pursue a proper equitable interest from your 5 year relationship that produced a child... I don't know what the actual worth of the business you let her have is, but the furniture, appliances & cars, all being depreciating assets equates to next to nothing as an equitable interest after 5 years & a child..

Fully understand your desire to help, & it's an admirable quality. BUT, you came here asking about possible pitfalls, I assume because you have some doubts. Go see a family law solicitor, tell them all this & see what they tell you... If your still happy with your decision after that, go for it & I sincerely hope it all works out for all of you

 

[J hus]

So yea first off there will be a rental agreement if this does go ahead.
Why have a property settlement when she was never a owner of the house or contributed to the purchase of it? And if thats necessary how is a property settlement done?
My main thing is i want advice on when is the point after seperation that someone can still take an interest in your assets?
I am planning on seeking legal advice and this is all part of that process. Ie the more people you speak to the more of an idea you get.
I have got formal legal advice in the past on different things and often the lawyer hasnt got a clue. Hence why my question on asking as many people as possible with actual legal knowledge on the subject.

 

[sammy01]

I think she can apply for asset division through court for 2 years after separation. The fact that you have a kid and lived together for 5 yrs means she was a defacto.
Worse - All the stuff you gave her is nice but means little legally as far as a formal asset division.

My concern - You have given her a pile of stuff and some $$$ so she could get on her own two feet. Yet she has been unable to find suitable accommodation. What is wrong?

Mate this is a family law forum - so the advice you're gonna get is based on experiences with family law. Clean break, move on is the advice you're gonna get on a place like this.

 

[Atticus]

After a 5 year de facto, at a minimum she would be entitled to 50% of any increase in value over that time... If that amount is small, depending on both your financial circumstances, future needs, earning capacity etc etc, a court may order you pay a reasonably sizeable lump sum on top of that, quite possible as you have a child together... Also the possibility of making a claim to some of your superannuation...

Time frame... a claim can be made to the court within 2 years of final separation.... After that she can still make a claim but will need leave of the court to do so... Basically has to claim hardship & that her & or a child will be disadvantaged if leave is not granted. There is no time limit on this although the possibility of being granted leave to apply diminishes with time... That said, there have been cases of leave being granted many years after separation, the longest I know of was 20 years.... Again seeing a family law solicitor with all the facts & figures will give you a pretty good idea of her equitable entitlements should she pursue it & you can make a judgment call from there as to if you think it's worth drawing a line & formalising something now..

The other issue about having her & kids move back into an asset in which she still has a claim to should be obvious.... You need to go in with eyes wide open. As I said, a rental agreement is toilet paper in this scenario if she were to become aware of her rights & pursue them via the family court system.... Any unpaid rent would just form part of a joint liability, she would be in the main residence until a settlement is finalised, & if things turn ugly & she decides she is in fear of you, it's a walk to the magistrates court, a good yarn, & you won't even be able to approach her or talk except via a solicitor, & then there is the possibility the DVO will require you to move off the property all together.... So go see a solicitor, get decent solid advice, & then think long & hard about the possible regrets, that's my advice anyway..... apart from having personal experience, I have been a member of legal forums for over 10 years & I have seen many posts of people wishing they knew then what they do now & that they could turn back time

 

[J hus]

Ok all good advice.
Basically now the house is worth a fair amount less than what i owe on the place. The last valuation i got approx $12k less than what i owe. In real terms its prob worth $25k less than i owe. The property market has taken a massive downturn.
My superannuation is virtually nil ive spent the majority of the time contracting.
She prob has substantially more in super than me. And still has part ownership in a house already.
In terms of savings or money id be ordered to pay. I dont have any im a millenial...
Like u guys say i will seek proper advice but always good to seek as much advice as possible.

 

[sammy01]

So the other thing to know is that asset division can only happen with solicitors. I doubt it would be worth her while to come after you for any more than you've already given her... So let's leave that one alone.

Mate your life, your choice, let her move in as a tenant OR don't... But on a law forum the advice is always gonna be recommending that post separation you keep finances separate. Good advice.... Maybe you're the exception, but if you're not it is gonna be a tough lesson to learn.

 

[J hus]

Thanks heaps guys appreciate having someone to speak with about it. Im not from australia so i dont have family here ect. Cheers

 

[Atticus]

So the other thing to know is that asset division can only happen with solicitors.

Actually anybody can E File a DIY initiating application for the cost of a filing fee, ie, $350, no solicitor required... I agree there may not be much to pursue, BUT, in this case, IF she were moved back into the home which is subject to asset division, and an application is filed, she could remain there, potentially rent free if she stops paying it for as long as it takes for final orders to be agreed to or handed down, & that can be a looong time.... That is a fact & a pretty sobering one...

One way to definitely avoid that though.... Don't rent the house to an ex that has an equitable interest in it.