NSW Ex partner entitled to refund of mortgage payments in buyout/sale?

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minklet

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20 September 2020
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A friend is currently looking to sell their house which they bought together with her ex partner (not married). About a year ago he walked out without warning, left the country and she had no contact with him for approximately 3 months. From that and subsequent conversations it was pretty clear that the relationship was over. They had bought the house together a year earlier, and both continued to pay the mortgage.

Fast forward to today, he is still abroad (stuck at the moment, but he works abroad anyway) and they are looking to move on, ideally sell the house or he buy her out. However, he is claiming that he is owed mortgage payments for the last 12 months due to the fact he was not living there - something that was not demanded, and as mentioned, he works abroad and so away for long periods even before the separation. He is insisting that any offer, or split of the sale, is less 12 months of mortgage payments.

Now, she is likely to be forced to go to a solicitor here but can someone tell me if this is right? Can someone claim the same equity in a house while not having paid the mortgage for that time?
 

sammy01

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27 September 2015
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There are no hard and fast rules about the way a judge might look at this. Arguably, he has a good case. The counter arguments are equally compelling.

My advice - tell him to get stuffed. Offer a fair split and tell him if he deosn't like it he can apply to court. But you need to realise that might motivate him to stop paying his half of the mortgage.
OR - rent the place out and get the tennants to pay the mortgage until it sells.
Just try and avoid court / legal fees.
 
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minklet

Member
20 September 2020
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Thanks for the advice.

Unfortunately renting is not really an option and would only cover a fraction of the mortgage.

So to clarify, the courts might rule that someone could leave the country of their own volition, stop paying the mortgage for a year, and then get the equivalent of those missed mortgage payments in equity, a year after they left? I can't get my head round the logic. Could I then potentially shack up with someone for 2 years, buy a house jointly, pay the mortgage there for a year and then stop paying and bugger off for 15 years and get 16 years of equity? It just sounds like double dipping.
 

sammy01

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27 September 2015
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In your example 16 years have passed. So a different set of circumstances and to prevent that sort of thing there is a rule that asset division needs to happen within 2 yrs of separation.

So for arguments sake. Your friend got to live in a house and pay roughly half of the value of staying there - Let's assume renting would cost the same as the mortgage. Regardless if that assumption is wrong, your mate is still paying substantially less than the value of the place because the ex has paid half. So your mate has gained a financial advantage / savings opportunity becasue the ex has paid and as such the ex should be compensated.

Just an argument because like I said, there is no hard and fast rule in family law... Magistrate looks at all the evidence and makes a decision. I can't say much more than that because I don't know all the details. Who paid the deposit?Who has a greater earning capacity? would it be fair and equitable to make a decision about the ex recieving a larger piece of the pie what if? what if? what if?

so for fun you said the court 'might rule that someone could leave the country of their own volition, stop paying the mortgage for a year and then get the equivalent of those missed mortgage payments in equity".... NO again you're comparing apples to pairs. It would be reasonable to think that in the event the ex didn't pay for that year then that should be factored into the asset division. Now I'm not saying the ex should get a penny for penny return - after all the first year of a mortgage is basically paying the interest. BUT he should get some return for his investment. But maybe a magistrate would see it differently.
 
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