WA How to Get Ex to Sign Consent Orders?

[Aidan]

I am separated. My Australian ex lives overseas and one of our kids lives with her full time and the other lives with me. I want us to make a clean break and divide all assets 50:50. However, she has just sold one of the 2 properties we owned, my name was not on the Title. The other house is held in a trust in both our names.

She has always refused to pay anything towards both mortgages. If I didn't pay them then I would have defaulted on the loans. I have had an offer on the one remaining house but she won't agree to sell as she wants more for it.

What can I do to force her hand into cooperating into signing consent orders under family law?

 

[AllForHer]

It's not 'cooperating' if you have to force her. In simple terms, she doesn't have to agree to the sale of the house if she doesn't want to.

So what can you do?

You can file an initiating application with the Court for a property settlement and let the Court decide what to do.

Are you aware that you're still entitled to a portion of the house that didn't have your name on the title?

 

[Aidan]

Well basically she won't cooperate because it isn't in her interest. She doesn't care if we default on loan as she has no intention of every returning to Oz.

 

[Aidan]

It seems to me that filing consent forms is a waste of time if the other party won't engage. I now need help on the next steps. Happy to give ex half of what we have but she feels I owe her more....

 

[AllForHer]

That's correct - you can't file consent orders if both parties don't consent, so your next step is to file an initiating application with the Court for a property settlement.

The Court will determine a property settlement based on four questions:

1. What is the total value of the shared asset pool?
2. What were the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?

The value of the house already sold and the existing property, along with various other liabilities, super funds, etc. will form part of the shared asset pool.

Financial contributions are simple enough - how much money did each party put into the shared asset pool. Non-financial contributions are slightly trickier - if one parent stayed home to look after the kids and the other worked to support the family, the one staying home will be said to have made a non-financial contribution. The Court won't punish a parent who sacrificed work to raise the kids by awarding them less in a property settlement.

Future needs relate mostly to child care requirements and capacity to work. Things that come into consideration are who has care of the kids and how long that care is expected to go for (a child of 15 will require less long-term care than a child of 5), whether one of the parties has a disability that restricts their capacity to work, and what the future employment prospects are (a party with a degree probably has higher employability than a person who doesn't have a degree).

Whether the settlement is just and equitable is for the Court to decide.

You must get legal advice, though. I believe it's a requirement in all property settlements that you must get legal advice. Legal Aid can help you with this, they provide three free consultations for family law matters, including property settlements.

 

[Aidan]

Thanks for that. I have no problem with the courts looking at the entire value of the assets acrued during the marriage and dividing them 50:50 even though I worked and she didn't. My concern will be how the courts view current and future earning capacity.

My ex has a degree but chose to live in Thailand where her salary now is pretty low and will continue to be compared to Australian standards. Also she maintains a "lifestyle" much more extravagant than her income allows. Also, she has my 3.5 year old with her full time and puts him in an expat private school and kept on our maid.

What I am getting at is that by choosing to stay in a country where there is no childcare support, free schooling, medicare, etc., so her expenses are much higher there than here. How would a court look at that?

 

[AllForHer]

If her capacity to work is higher than what she is currently working, the Court is likely to look more at what she is capable of earning, than what she actually is earning at this juncture.

Basically, in my experience, the Court doesn't reward people for claiming poor voluntarily or temporarily.

 

[sammy01]

So apply to court for all of your assets to be legally granted to you. She can choose to come to Australia, or employ a solicitor here to represent you or let it go unrepresented and you win..

What do you think she'll do? Pay a solicitor or do nothing? I reckon she'll do nothing because the solicitor will cost her heaps. And you win

 

[Matthew Lynch]

You can apply to the court for the property to be sold and the proceeds held in a controlled monies account until you can agree on the percentage split. That way you will not lose the sale if you think it's a good offer.

If she does not agree to what you are proposing currently there is not point wasting time drafting up consent orders and sending them to her or trying to convince her especially if she does not have a lawyer to convince her to settle.

You need to just get into court as quickly and as cheaply as possible and thereafter she is much more likely to agree to what you are seeking after speaking to a lawyer who will advise her.

Let me know if you need further info.

 

[Aidan]

Hi again.

So I tried to get my ex to agree to sell the one remaining property but she is refusing unless I agree to a bunch of other demands. I have a cash offer which is on the table now and we had gotten as far as an agreement on the amount and were just waiting on final signature from my ex but she has now added all the demands (which I won't go into here only to say they are unreasonable and she would have little hope of getting any of them if we go to court).

So, my question is - I have read somewhere that there is an option to file an urgent request with the court so as I can push the sale through without her signature. I am struggling to make loan repayments on this property and ex isn't paying anything towards it and now has shown she will try and use the need for her signature to demand other things.

I am still happy for the profits from the sale to be held in a trust a/c until all assets are divided as the courts see fit...

Any help much appreciated.

Thanks,