VIC Paid Husband Out in Property Settlement - Pay Him Out Again?

[Sheila]

I paid my husband out once from my first property in property settlement, now he wants to do it again. Both homes were and are in my name? He sold his property at a big loss.

 

[James D. Ford - Solicitor]

Hi Sheila,

Did you get legal advice when you settled the first time? Did it go to Court?

It is possible that the settlement was not binding according to the Family Law Act 1975 (Comm.)?

Unless and until a binding Property Settlement is reached, or a Court approves or decides the matter, you are both still joined at the hip financially.

Time limits do apply. where approval of the Court is required before an application for a Property Settlement can be made.

Are you still married? or are you divorced?

If you are both divorced, and it was more than 12 months ago - if he wants to pressure for a Property Settlement, he will need to explain his delay, and obtain the consent of the Court, before he can take any further steps...

If you are still married or were divorced less than 12 months ago, and your last settlement (was not legally binding), he has a legal right to ask for a binding property settlement.

I await your responses.

Kind regards

 

[Sheila]

It did go through lawyers, l paid him out! 2 years later he wanted to try again with our marriage, never divorced. He stayed at my home renting his place out to save money until it sold. l paid the mortgage while l was looking after my Dad till he passed. He doesn't have a property but threatens me to take half of mine again. He did renovations on the house which l paid for from my inheritance.

Thanks

 

[James D. Ford - Solicitor]

Hi Sheila,

It is a complicated situation, with you both separating, settling, and then trying again with the marriage.

It would have been simpler, had you divorced 1 year after you separated? as you would not have even qualified "after the 2nd attempt" as a de facto couple and he would have no basis to make any claim for another property settlement.

Can you please provide details of the "trying again" with the marriage? How long did this last?

Kind regards

 

[Sheila]

Been living together full time in my home for 14months but he's been here for 2 and a half years and l was with Dad. We have no children together. l have my son at home going to uni.

l don't make a great deal of money. If he tries to take this, l have nothing and he told me he can easily start over being he earns more then me,

 

[James D. Ford - Solicitor]

Hi Sheila

It is not the best news, but as you are still married, and you resumed your marriage and cohabitation for 14 months, there is a real possibility he will be successful in forcing a second property settlement.

The following case is an example:

Facts:

• The parties were married in 1985 and separated in 2000. They lived together for many years before getting married.

• Following separation the parties divided their property interests pursuant to Court consent orders.

• In 2006 the parties reconciled, but separated again in 2008.

• The wife filed an application for property settlement in June 2012. They were still married!!

• The husband argued at trial that the court had no jurisdiction to make property orders because of the orders made in 2002.

Decision:

• The Court held it did have jurisdiction stating that “where parties have, by their behaviour, conducted themselves like a married couple, they should not be prevented from re-litigating the issue of property settlement”.

• The court in this case also had to decide how/whether to take into account the first property settlement orders.

• The court decided that they could not “start the clock all over again” from the beginning of the second relationship, notwithstanding the efforts of the parties to bring their finances to a conclusion at the end of the first relationship. The court went on to say that the contributions the parties made to their first relationship (which was over 30 years in duration) had a lot to do with providing a springboard from which their financial affairs stood in their second relationship.

If you wish to fight this, you will need to engage legal assistance.

If you cannot afford a lawyer, I recommend you approach a Local Community Pro Bono (Free) Legal Centre.

Legal research will be required to determine if there have been any subsequent Court decisions that have held differently (to the above case) and a detailed review of your BFA, will also be required as it might provide for this situation, and already have an agreement regarding what is to occur.

Kind regards

 

[Sheila]

Thanks for your time. Appreciate it.