VIC Debt and Mortgage After Separation - What to Do?

[mzJcHarris]

A little over 5 years ago I (with my children) had moved from a property co-owned by myself and my ex-partner(I paid most the finances including a 20k deposit).

Moving due to separation and to escape abuse, I immediatley sought legal action. My lawyer did very minimal and as he did not proceed to have my ex-partner removed from the property to sell, I was left with no choice but to foreclose (unable to afford my own rent plus a mortgage).

My ex-partner destroyed the property over this time and the property value declined greatley. Recently selling the house at a dramatically low price, it was not enough to cover the mortgage debt, and now I am being pursued to pay over $12,000.

I would appreciate if anyone could help me with the steps to take next or if I have any legal standing to have the debt rolled over to my ex-partner.

 

[James D. Ford - Solicitor]

Hi msJcHarris

This is really a family law question.

What was the result of your legal action? Property Settlement orders?

 

[mzJcHarris]

Thank you for that clarification as I wasn't sure and for your time.
We had agreed upon a reasonable split of the profits once the property was sold with conditions, including my ex-partner being allowed to live on the property till it was sold. My ex-partner took over the mortgage repayments (and all associated bills to the house, i.e. the rates) during this time.

I was to organise the sale of the property, to which I had done so but was told I needed to clean up the property. Organising landscaping but not able to gain access to fully repair it as my ex-partner didn't allow me onto the property. My lawyer then proceeded to have him removed as he failed all the clauses in the contract by not allowing the sale of the house to proceed.

Nothing further happened and my ex-partner then stopped paying the mortgage.

 

[James D. Ford - Solicitor]

Hi mzJcHarris

So can you please clarify whether you agreed in writing? or verbally?

If you agreed in writing, was it a BFA (Binding Financial Agreement) that was signed? or was it done via Court mediation, with Consent Orders approved by the Court?

Before any Financial Agreement made outside of a Court can be Binding, both parties must obtain a Certificate of Independent Legal Advice.. did you and your ex, both obtain this Certificate before signing?

I await your responses.

Kind regards

 

[mzJcHarris]

My apologies. His lawyer wrote up the contract and was taken to court. It was approved and stamped by a judge (court approved). I should also mention that during the contract period, my ex-partner failed to pay the bills associated with the house (rates) creating debts. With the halt on the mortgage repayments and rates, the debt total is nearing 12k.

 

[James D. Ford - Solicitor]

Hi mzJcHarris

You ex has contravened direct orders of the Court.

Your next step is to consider making a Contravention Application to the Court, and to nominate what consequences you want the Court to consider should follow as a result of the breaches.

Please read the following for more information:

Application - Contravention - Family Court of Australia


Kind regards

 

[mzJcHarris]

Thank you so much for your help. I will certainly be taking action to clear my name. Would it be wise to hire a new lawyer or could I manage this process solely?

 

[James D. Ford - Solicitor]

Hi mzJcHarris

It is always best to hire a lawyer, if you can afford it... (hopefully the same lawyer you have used in the past - unless you are unhappy with their level or service or competence).

A lawyer will first send correspondence to your ex, putting him on notice that he is in breach of Court orders, telling him to seek urgent legal advice, and providing him with a timeframe to remedy the situation. If the situation is not remedied, the lawyer will ensure the correspondence states that you intend to rely on the letter, on the subject of legal costs... as it would not be necessary to apply to the Court, if your ex had complied with his obligations.

You can never rely on the fact that you will have any of your legal costs paid for by the other side... or that you will not be called upon to pay the other sides legal costs... this is known as litigation risk... however, if it is a clear case of a breach of Court orders, then the probabilities increase in your favour.

Kind regards

 

[mzJcHarris]

I will contact my previous lawyer to express wishing to take action. If I'm unhappy, with his response I will seek new representation. We had the proof to show he failed the contract so it may work in my favour this time.

Thank you again. And thank you for giving your valuable time to help people on this site.

 

[James D. Ford - Solicitor]

Glad to be of assistance, please let me know how you go!!

Kind regards