VIC Property and Family Law Issue

[Tina Guha]

Hello Everyone,

I am new to this forum and the legal side of things. However was considering to be prepared for any unforeseen circumstances. Me and my husband have our family home in Joint names, and we have 2 dependent kids. The relationship is not going very well and I am in the process of considering to move out of the family home.

However I have also come to know that my husband is seeing someone and my relatives have warned me, as soon as I move out he will bring the other woman in the home and I will lose all rights to the property. My husband is also abusive both verbally and physically with a constant traits of jealousy.

In the event I move out what are my rights when it comes to properties, superannuation and other factors? Can I still retain the property for the future of my children? He didn't have an employment for last 1 year (we bought this house in 2016 ) and I have continued to make home loan repayments and other expenses associated (rates notice, electricity, gas, water and insurance) for the house all from my own income without any help from him.

Can he take possession of this house and I lose all my rights for this house? Can I stop him from selling this house? With regards to kids I understand, it would be a different issue altogether and will write another post.

Please advice, I am under tremendous stress.

 

[Tina Guha]

Sorry forgot to add on, I earn much more than him $120K and for last 1 year he has been unemployed and recently started his business (with low income, however he also hides his income from me). However him being not helping me financially recently I have ran into severe financial issues with banks and other lenders which is affecting my credit score. While I have applied for financial hardship with the bank so that they ease the home loan repayments...but i continue to struggle alone all by myself.

He doesn't pay anything for the children, no school fees, no tuition fees, no child care fees and no money for extra curricular activities. Even though we live in the same house we are living like strangers and he continue to threat me saying to give him 6 months, his business will set up and then he will bring the other woman. However so for the next 6 months he will live rent-free with no financial obligations towards his family.

 

[sammy01]

You won't lose the house by leaving. But it is messy because you'll still be paying the mortgage and having to rent.

You have said he is physically abusive. I strongly encourage you to visit the local police station. The police will help and they should give him an avo - that is an Apprehended Violence Order. So that can stop him from coming to the house or anywhere near you.

 

[GlassHalfFull]

Although a IVO is possible if you can convince the police of the violence (the bar for believeability is sadly rather low), I also strongly suggest you at least try to resolve the situation without one unless there is an imminent threat of violence. IVOs can be misused maliciously and having been the victim of a grossly unfair one that my ex used to gain an advantage, unless you want to ratchet up the tension between you and your husband by using it to kick him out of the home, I don't think they are the first thing you should look at doing. They may achieve a result, but they can be used as tools of violence in their own ways.

I can't see how you could lose rights to the property by moving out, although by leaving, you do make it harder to go back as possession is 9/10ths of the law apparently. I think the better answer is to TRY to discuss a separation with him (unless you genuinely feel it would put you in danger) and what that may look like. I wouldn't suggest you move out until you've had that conversation to see what is likely to happen. If there's really no option to talk things through without fear, then I suppose an IVO may be your only option. But I can tell you from experience, they can be brutal to the family (especially children) and should be a last resort... Try to put the best interests of everyone first. Hard to do in a separation, but it's for the best.

 

[Tina Guha]

Thank you, however to provide a bit more context. I have been married to this man since 2004, however we separated in 2008 when he physically abused me when I was holding my 1 month old newborn. I left home with my child and seeking refuge at women's shelter and subsequently I applied through court for sole custody of my daughter which was granted. I had a AVO against him in 2008. We were divorced as well, however in 2012 thinking that he has changed I reconciled with him for the sake of my child and also I think I still cared for him. But he has always been an abusive man both verbally and physically, and he hasn't changed a bit.

I am not worried about him anymore, but more for my kids and their future and the assets that I have created which ofcourse I would want my kids to inherit. He will not move out as he has no where to go, he doesn't contribute anything financially and sticking around just because I am paying for everything. Kids don't like him and don't want to talk to him anymore.

 

[GlassHalfFull]

Hmm. That does create a pretty tricky situation. All of the above does not necessarily justify kicking him out of the home with an IVO though, unless he is actively threatening you. There may be a possibility of you justifying financial violence if he is

You won't lose your equity in the home regardless though. I don't know of the best way to deal with that situation. It sounds like before you move out and set things in motion, you need to try to discuss a financial settlement with him. If you're unable to make progress with that, and it sounds like he may make it difficult, mediation would be the next step required, and then finally if none of the above works, you'd file in the federal circuit court for financial matters (and possibly parenting matters too). I imagine at some point, you would have to sell the house though unless you could somehow cover his equity in it (sounds unlikely?). The quicker the better if you are going to struggle paying it off . He will have a joint claim to the shared assets although if you are the primary carer of the children, you may get more than 50%. His reliance on you may play a role in determining the amount too, although I don't think the courts are that sympathetic to those who can but contribute. You can't exclude him from his share of assets, but what his share would be is to be determined by the court if you can't reach an agreement privately.

Not sure how much of this is obvious to you already - apologies if so. It doesn't sound like an easy position to be in. Is there no possibility he could move into the house of the woman he is seeing? If he is not actively involved in parenting, you would have a stronger case in remaining in the home for the sake of the children... It does sound more and more like an IVO is the only way to resolve this situation, but as I said already, it is the 'nuclear option' and although he clearly has some serious failings, unless there is imminent risk to you and the children, it's hard to justify an IVO honestly.

 

[Atticus]

The relationship is not going very well and I am in the process of considering to move out of the family home.

Very VERY bad idea for you to move out... While you won't lose your right to an equitable interest in the property under family law, you'll have to rent or live in emergency accommodation with kids.....He will have possession, probably won't pay a thing, towards costs, the house will go into disrepair, & you'll probably wear most of the loss because this bloke sounds like a loser with little to his name....

DON'T MOVE OUT..... May I suggest that you look into separating under one roof as an option.... Here's some info >>> Separated but living under one roof - Federal Circuit Court of Australia

Whilst separated under one roof, If he is not willing to move towards an agreeable property settlement, you can file an initiating application for a property settlement to get the ball rolling..... In the meantime, if he commits any act of physical violence, intimidation, blackmail or the like, don't hesitate to call police & have him dealt with...

As part of your initiating application, I suggest you seek an interim order for sole possession of the house for yourself & kids pending final orders for property matters...

 

[GlassHalfFull]

Yeah, the biggest problem in this situation is the fact that you solely pay the mortgage/bills and he has little to no capacity to contribute. In theory, a fair and equitable settlement would include him paying his share of the costs towards the house that you paid post-separation, but it sounds like you couldn't afford to pay the mortgage and rental of your own, which means even if you were to get the money back, you'd struggle in the mean time. On reflection I agree with Atticus. Best outcome is you live together but separated under the same roof. Don't move out.

 

[sammy01]

The way I see it you have 2 options:
1. Tell him you want to sell and once it sells go your separate ways.
2. the avo - now in your first post you said he was abusive both physically and verbally. Clearly thre is history od dv here. The fact that he is hanging around because it is a free roof and free food is a form of financial abuse. I reckon a chat with the cops is a good idea.

 

[GlassHalfFull]

Devil's advocate here ... I'm not sure I would call it financial abuse just because he's hanging around in the house with little to no contribution. It's his house as much as it's hers even if he hasn't been contributing recently. In a normal healthy relationship, the OP should or would probably be supportive of him trying to build up the business for the benefit of the family, not throw him under the bus because he isn't able to contribute financially like she can. Just because they now want to separate doesn't automatically mean he's being violent to her. Something that happened years ago, while not excusable, is not justification for an IVO now. I would certainly hope for the sake of fairness for humanity itself that the magistrate takes a good hard look at that before granting it.

Being a dropkick is not violence. Let's not forget the serious consequences an IVO has on the recipient and consider whether it's really an appropriate response. I suppose it comes down to how he reacts to the discussion about how to move forward. If he tries to blackmail her into letting him keep the house, then maybe all bets are off. If he's reasonable and tries to find a solution that is fair for both parties, an IVO isn't warranted IMO.