QLD Property Settlement After Divorce Granted - How to Prepare for Court?

[Lydia]

Our divorce was granted on 20th May 2014. We separated on 18 February 2013; initially ex husband and I have sit down and sorted our property settlement verbally. He told me not to consult solicitors to avoid extra expenses. I agreed and started to research how to complete the consent orders forms and minutes of order.

I have approached legal aid to check if I have completed the form correctly and if there are missing items that need to be recorded. She advised me that I need to insert all my financial contributions before marriage and this I explained to my ex husband which at the time had agreed. However, due to death of my sister January this year, I have to travel overseas. when I came back and we have another sit down discussion, he agreed to all the figures we enter in the consent forms. And he signed a discharge mortgage form for both loan so we can arrange refinance.

I will take over the home loan (principal residence) and he will take over investment loan( duplex property). When I had all documents available to be signed he did not show up and decided that he will get a solicitor to prepare the consent order form which I told him that's fine as long I am not paying the cost for the solicitor.

This was March 2014 and now November we still negotiating as his solicitor keeps sending me the form without acknowledging my financial contribution. During the separation period, I kept the home loan and made payment as I normally do, making payment more than scheduled amount, which I used the redraw facility to pay my credit cards (mostly bills). Now, with his GF coached him that he is entitled to half of that, where he is never made payment and he is aware of my activities on this loan and agreed for me to use and keep it the way I want to be. As I don't have solicitor myself, I personally respond to his solicitor as I don't know much of those legal terminology which can be daunting.

I have approached legal aid but would not help me as the total property equity is more than $146,000.00 Do you know anyone who can help me to assist in preparing myself to court. And his solicitor made a statement of that costs on an indemnity basis will be sought from the court be awarded to our client - payable by YOU (me). They are not the one who wants to go to court and would not agree on our original terms why should I pay for the cost?

Anyone can help me will much appreciated.

 

[Sarah J]

Hi Lydia,

There are two main types of costs that could be awarded:
1. Party-party
2. Indemnity basis

Party-party is the normal award, where the ultimate "winner" is awarded reasonable and just costs, to be paid by the other party, to cover their representation fees. If the parties do not agree as to what is "reasonably incurred" then this will go to taxation which is where the court goes through each item and determines what is a reasonable price for such service/item.

Indemnity basis is more rare. It is awarded when court believes one party has wasted court's time or brought forth a frivolous case or by some other reason should be penalised with higher costs. There is no obligation on the receiving party that the costs incurred be proportionate, rather the obligation is placed on the paying party to show that costs incurred are unreasonable. This often means that the paying party pays a higher proportion of actual costs than the standard party-party costs. This is usually ordered when one party refuses an offer to settle and is later awarded less by the court than the offered settlement.

Have a look at this Family Law Court sheet for more information.

 

[Sarah J]

Hi Lydia,

It sounds like the other side's lawyer is trying to intimidate you. Indemnity costs are not lightly ordered.

The prior agreements, were any of them made in writing?

In regard to property settlement, the Family Law Courts website has some very useful information about how courts would calculate property division. In particular, see "property and money after separation". Also take a look at another LawAnswers Family Law Forum thread: "New husband wants half of everything" and the following pages on self-representation: "QPILCH self representation service" and "QLD courts representing yourself in courts assistance and support". It is also best to speak with your local community legal centre.

Best of luck.

 

[Lydia]

Hi Lydia,

It sounds like the other side's lawyer is trying to intimidate you. Indemnity costs are not lightly ordered.

The prior agreements, were any of them made in writing?

In regard to property settlement, the Family Law Courts website has some very useful information about how courts would calculate property division. In particular, see "property and money after separation". Also take a look at another tread: "new husband wants half of everything" and the following pages on self-representation: "QPILCH self representation service" and "QLD courts representing yourself in courts assistance and support". It is also best to speak with your local community legal centre.

Best of luck.

I have prepared our prior agreement ( I completed the consent order forms and prepare the minutes order) but he decided to have solicitor prepare for it as he is not comfortable about just me preparing it. Told him he can do it but not expect me to pay share of the solicitor. Our investment property was listed for $385k and last year Nov 2013, a company offered $170k which I am not aware of,however the valuer (which supposedly independent this was chosen by solicitor) valued it for $345K. I have been told that court will use the current value even though I agreed in 50/50 but lowering his Asset and increassing my Asset it means he wants a pay out, which is totally contradicted what we initially agreed that there will be no cash pay out. I dont know how can I insist to it as his solicitor have told me that agreement was not signed, I did not signed it because on consent form item 67-68 - 69, solicitor would not acknowledge my input as my financial contributions.

We have two property here,home and Investment (duplex, where he is occupying the other unit and other one is rented). Since we had agreed I keep our home and he keep the investment and we keep and maintain the property and payment as our own. Since separation thats what I did, as our Home affected by flood (not inside - thank God) I made a renovation from fencing, and put up a shed, structurally the house is not quite good as doors are not shutting properly. Real estate valued my place to sell $230k but recently his solicitor had an independent valuer value it for $280k. I have gave his solicitor the coopy of real estate value but she insisted to have an independent valuer which I agree as long I am not paying for it. As I mentioned earlier, I took reponsibility to the home loan ( which I normaly put 3/4 of my pay since we had this loan) and i continue doing it so. However, at the time we agreed with our settlement, my ex asked me abaout the redraw amount available, I told him that I have used it paying all our bills and credit cards and that there is a couple of grand available that I want to keep it as my safety for in case i lost a job that bank would not chase me up for money. We agreed that home loan is $75k and we both signed the discharge mortgage release as I am refinancing it with other bank, and should finalized until the bank received the stamped consent order. Which until not has not been done, in the meantime, he had another issue that brought up, that at the time of separation there's a 20k redraw available which he thinks he should be included in the pool, eventhough he said its ok when i told him that I had used it. and at the time we had sit down which is Nov 2013 the balance is $74k, i told him that I will ask for refinance for $75k to cover any incidental costs and we both signed discharge mortgage release now submitted to the other bank. Can he do that to me, he flip back of what we had agreed, he is now saying that he knows nothing about it. I did not spend the money for anything, just bills and pay my medical expenses. Its my savings all in that loan and he wants me to give half of it.
In 2005 our home loan is 135k and I solely put money half of my pay, to have a redraw facility and used them to pay big bills. Now 2014 I managed to reduced it to $73k, on Feb last year at time of separation total balance is $58k but as I said, I had to pay all bills around $15k.

I had tried to contact my local community legal centre, they just told me that they are unable to see me and contact the legal aid.
Oh I'm sorry if I had get carry away, and yes you are right his solicitor is intimidating me as she rang me and demanding an urgent reply after she sent an email 10 mins before she rang me. Also does she right to file the case where ever she wants to, she is talking the Familiy Circuit, which I believe its a local magistrate court. . This is exatly what she said." We hereby give notice that it is our client's intention to immediately file proceedings at the Federal Circuit Court of Australia in respect to financial issues and that cost on in indemnity basis will be sought from the Court be awarded to our client- payable by you. Is that mean I am expecting to receive any subpoeona to appear in court. Or do can I file a response to that, I am going to look at that pages for self representation.

Thank your time, Sarah, God Bless You Richly.

 

[Sarah J]

Hi Lydia,

From what the other side said, they intend to initiate proceedings in the Federal Court. In this case, you can expect a writ or initiating proceedings papers served to you. If you do not receive papers served to you indicating an action has been started, then they have not initiated action.

Indemnity basis is sometimes ordered by the court when one side offers the other side a settlement offer (which is kept private and confidential from the court until the end of proceedings) and the receiving side rejects the offer but then at trial receives an order that is less than what they would have received in the offer.

You should assess your position, with reference to the division principles considered by the court (links in my previous post) and calculate whether the offer is worth accepting or not.

 

[Lydia]

Hi Lydia,

From what the other side said, they intend to initiate proceedings in the Federal Court. In this case, you can expect a writ or initiating proceedings papers served to you. If you do not receive papers served to you indicating an action has been started, then they have not initiated action.

Indemnity basis is sometimes ordered by the court when one side offers the other side a settlement offer (which is kept confidential from the court until the end of proceedings) and the receiving side rejects the offer but then at trial receives an order that is less than what they would have received in the offer.

You should assess your position, with reference to the division principles considered by the court (links in my previous post) and calculate whether the offer is worth accepting or not.

His initial equity before marriage is 25% of the total value of Property ( home) , We initially agreed on 50/50 based on the property value of each property as we agreed on and acknowledging my financial contribution. However, upon him consulting solicitors he maintained the 50/50 but increasing the property value ( My) and reducing his property value, which resulting 60% to me and 40% to him, thus mean I have to pay him out about 50k. This is the opposite that we had agreed previously, that no cash pay-out, just clean transfer of titles, we will be responsible for our own each loan and move on with our life. How long do I have to wait for or expected a writ? Do I have a right to request which town should the proceeding to be filed. As his solicitor is filing it on same town she is practicing where I dont know if that would be in my favour.

 

[Sarah J]

Hi Lydia,

1. Generally, the plaintiff (person initiating the court proceedings) can apply for the papers but has until 12 months to serve them onto the defendant (you). The action is not commenced until they serve the papers onto you. Before then, they just have the option to initiate proceedings.

2. You can contact the lawyer or the plaintiff and make this informal request. However, you cannot generally forcibly move the proceedings from one court to another unless it is across states or countries. The courts will all be the same irrespective of in which town they are located. It may be a practical inconvenience to drive/travel to the town (district) for the proceedings however, this is not usually grounds for transferring an action. However, you should call up that particular court and enquire once (if) you receive the initiating papers.

 

[Lydia]

Hi Lydia,

1. Generally, the plaintiff (person initiating the court proceedings) can apply for the papers but has until 12 months to serve them onto the defendant (you). The action is not commenced until they serve the papers onto you. Before then, they just have the option to initiate proceedings.

2. You can contact the lawyer or the plaintiff and make this informal request. However, you cannot generally forcibly move the proceedings from one court to another unless it is across states or countries. The courts will all be the same irrespective of in which town they are located. It may be a practical inconvenience to drive/travel to the town (district) for the proceedings however, this is not usually grounds for transferring an action. However, you should call up that particular court and enquire once (if) you receive the initiating papers.

I replied to his solicitor and give all informations that my ex husband is getting a fair share and we should stick to what we had previously agreed. However I shall wait when they replied. , so they could have apply to initiate proceedings ..so what will happen during the 12 months period if I dont hear from them. Do we still can resolve and apply for the consent order. I am going to ring The Family Circuit of Australia (Brisbane) to find out if there's an application against me. I dont think his lawyer and ex will be obliging to do so ( to transfer )...they are just mean people. So from here, all i can do is to wait and cannot move on with my life because they can wait and sit till they decided to serve me.

 

[Sarah J]

Yes, you can still negotiate and attempt to reach a settlement. If you do reach a settlement, make sure it is in writing and signed by both parties and apply for a consent order to make it "judgment-enforceable". In fact, this is advisable. You can also decide to include a term in the settlement agreement that the other side withdraw any existing matters, pending matters or future matters relating to this action from the court.