QLD Dispute over different separation date

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HazelSmith

Active Member
3 June 2019
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31
I moved out from the matrimonial home in early of 2015. My ex continues to live in the matrimonial home till today.

Before I moved out, I arranged to use my saving that I saved during the marriage for the deposit and bought a new home. I have lived in this house with my son permanently since. The house was bought with mortgage under my name and I am the sole responsible person for mortgage repayments. I myself have maintained my home and paid all utility bills with no help from my ex. I know that this house will have to go to the property pool when we do the property settlement.

Due to argument about leaving my son unattended under my ex's care in 2018, He agreed to come and see his son at my place and no sleep over at his place. As I allowed him to use my shed to store his business stuff, he came up from his house to get his stuff for his business from my shed and used that time to see his son also. We had no parenting agreement in place but we were more open and flexible with how we arranged at that time.

I first asked for a property settlement in 2017 (as he decided to peruse the new relationship and failed afterwards.) and again in 2018. Both times he ignored my requests and gave a reason that his financial statement wont be ready to go ahead and need more time. At the beginning of January 2019, I asked again and his reply was the same. This time I insisted that I would no longer wait and I finally involved a lawyer to begin the legal process. Due to the rising tension, I contacted the child support agent to change the child support collection from the private collection to through CSA in early of January 2019.

I first notified the Centrelink in 2015 regarding the separation. In 2017, my ex and I agreed to change the level of care to reflect the true percentage of 90:10. He agreed through the Centrelink Agent and the percentage of care has been maintained at that level since.

A week after I asked him about a property settlement, a domestic violence occurred at my house as he tried to get my son to go with him and the police got called. One part of this statements to the police was we just separated in early of January 2019 but I informed the police that was the date that I asked for the property settlement for the last time and I am separated and have been living at my property since 2015.

I have evidence to prove about the status of the relationship, my permanent residence after the separation, utility bills, child support letters and Statutory Declarations. I used these evidence to prove to Centrelink when my ex put an objection not to pay any child support before January 2019 when CSA tried to chase him money and he withdrew his objection at the end.

As we are dealing with property settlement, he wrote a reply to my lawyer and disagree with the separation date. He told me on the phone that I lies and tries to use the gap between 2015-2019 to make some gain from the property settlement. He gave the reason to my lawyer and everyone that "We were living as a couple until early of 2019 and him and I slept in the same bed on average of 4 nights a week."

He has not done his company and personal tax returns since 2015.

I read from the Legal Aid website and it states both parties do not have to agree with the date of the separation.

I am up to the point that I have to prepare financial statement from the date of separation for my court application. I would like to know how the court will look in this case.
-Do I have to prove again and how when he tries to go against me? or it will be him to prove?
-Will there be any issues with my application when i file to the court?

Thank you in advance for your reply.
 

Atticus

Well-Known Member
6 February 2019
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So you have not divorced? Only reason I ask is because there is a time limitation of 2 years after a divorce is granted in which to file for a property settlement without special leave of court to apply out of time..

Did you cohabit again as husband & wife for any periods of time after the 2015 separation that cumulatively amount to more than 3 months? If so there is a small possibility that this could be used to argue a case

If you haven't divorced or cohabited as above, then just go with the separation date of 2015... You have an official notification to centelink from that time. If he contests that date he will have to provide some sort of compelling evidence to support it.
 

HazelSmith

Active Member
3 June 2019
14
0
31
I have not divorce yet. He needs to prove his words in this case. Each time he tells some one the number of night we slept together increase. He told my neighbour that we slept 3 nights a week and my neighbour told me that he never saw him as he said during the week. only saw him when he came to do thing with his business. My neighbour who always helps me around the house can tell. Now he talks to my lawyer the number of nights he slept with me increase. I said to him bring evidence and talk to me.

He goes against the separation period. I’m not sure that the gap 2015 - 2019 will make me gain more benefits from the property settlement. From what he believes, it must have some effects. That why he goes against me in all possible ways.
 

Atticus

Well-Known Member
6 February 2019
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294
2,394
He goes against the separation period. I’m not sure that the gap 2015 - 2019 will make me gain more benefits from the property settlement. From what he believes, it must have some effects. That why he goes against me in all possible ways.

In a property settlement all assets & financial resources AT THE TIME OF SETTLEMENT are taken into account, so it's arguable how much difference if any it would make in the final outcome... The main thing is you can demonstrate a separation both physically & financially at about the time you say it occurred.... If he has been contributing to your property by way of maintenance, improvements & the like he could claim that has a bearing but not just sleeping together on the odd occasion even if that had occurred.
 

HazelSmith

Active Member
3 June 2019
14
0
31
He will not be able to make any claims financially as he never paid for anything towards this property.
I have a further question regarding the split when working out in deciding the property pool.

As everyone I talked to said that my house is in the property pool and I can’t argue with that. The lawyer I spoke to said that what I have paid towards my house after the separation is still considered as part of the pool and can’t not be separated. No extra benefit towards what I have been paying since 2015 when working out the split. I’m confusing. My ex tries hard to convince everyone that separation just started six months ago. What the law looks in my case Comparing to what I Was told that my separation period will not affect the split.
 

Atticus

Well-Known Member
6 February 2019
2,011
294
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My ex tries hard to convince everyone that separation just started six months ago. What the law looks in my case Comparing to what I Was told that my separation period will not affect the split.

Yes that may be the case, that's why his contesting the separation date may not be much of an issue in the bigger picture... One of the problems here is that by your own admission, you paid a deposit for the place with money that you had saved before you separated... That money is considered joint money.

What I recommend you do is get together proof of value & purchase price of your property at the time of purchase, & get a valuation done now as you are preparing for settlement... As long as you can then demonstrate that all payments, maintenance & improvements since purchase have been carried out by you or by money that you have earned post separation by your own labour, then that should be argued as post separation contributions that you yourself have made to that property which has contributed to it's current value..

That should help mitigate his claim on the property
 

HazelSmith

Active Member
3 June 2019
14
0
31
Really appreciate your advice and thanks for your reply.

I have no problems with any piece of document I need to provide and prove. Solid evidence. And yes the money I put the deposit for the house is considered as joint money at the time I separated.

With post separation,contributions, the lawyer I spoke to never want to touch on it on the paper work when doing the pre-action procedure. He just looked up to the settlement date only and everything is classed as a whole. All the financial statements after separation will help clarify itself in the court?

As part of the property settlement process after filing the application, I know that I have to go through the private mediation along the way. My question is who will help aid or determine what split should be after the application lodge n first hearing. Or purely come from my lawyer’s advice?

My ex has a big trouble with full and frank disclosure and this is why it brings me to this point of filing the application to the court.
 

Atticus

Well-Known Member
6 February 2019
2,011
294
2,394
As part of the property settlement process after filing the application, I know that I have to go through the private mediation along the way. My question is who will help aid or determine what split should be after the application lodge n first hearing. Or purely come from my lawyer’s advice?

If you are able, I recommend you do some research on what the process of property settlement involves & familiarize yourself with the most important aspects of the legislation... If you have a solicitor, & you have confidence in them, then be guided by their advice, BUT, don't be afraid to ask at any stage if you need clarification or to question why that this or that is not being discussed.. This is where educating yourself on the subject can help...

Navigate around the Federal Circuit Court web page >>> http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home

That has links to a great deal of information, links to the family law act etc..

You can also look over the Attorney General web site that has some helpful info & links >>> Family law system | Attorney-General's Department