QLD Property Settlement - Challenging Ex's Personal Loan from Parents?

[Tamsin]

Hi everyone,

I've been waiting for a property settlement hearing for a while now, and recently had a financial conference with the Registrar at our local court to try and discuss some of our issues.

Both my ex and I are originally from overseas, and since we split, he sold one of the properties we owned and gave all the money to his parents. He claims it was to repay a personal loan, which he had an agreement drawn up for after we separated. I have a lot of evidence that this is all hokey, and as we were mortgage free on that property, I want to include the proceeds in our asset pool.

The registrar told me that I may find I have 'jurisdictional difficulties' in doing that, though. My ex-in-laws live overseas, and the Registrar told me if I challenged the claim to a legitimate loan, they would need to fly to Australia for the hearing and I could end up paying their costs. He advised me to carefully consider whether it was worth including the property or just leave it out altogether.

I'm a little confused as I honestly believed that his parents could swear an affidavit and that could be used by my ex as their testimony. I've never heard of people having to be flown in for a marital property settlement and it seems a little overkill to me!

Can anyone shed any light on it for me, please?

Thanks

 

[AllForHer]

Well, if a person is not available to be questioned as a witness to proceedings, then the other party can seek to have that evidence struck out, which is why they need to be in attendance on the day. I really suggest getting legal advice for this - to me, the proceeds of a jointly owned home is going to be substantial, especially if there was no mortgage owing on the property, so it would be worthwhile including those funds in the property settlement, but you also need to determine the likelihood of success so that a costs order can be avoided.

I understand the agreement for the personal loan was written up after separation, but was the actual personal loan taken out before separation? Why didn't you have a caveat placed on the property to prevent its sale before the property settlement was made?

 

[Tamsin]

Thanks for the reply!

I didn't take out a caveat because I was completely distracted with children issues. When we separated my ex took our children and disappeared with them, not allowing me any contact at all. I focused all of my time and energy on getting them back through the court and didn't even think about our assets until my head was a little clearer.

By then it was too late, he had sold it in record time for a substantial loss.

The money was given to him years ago, so yes before separation. I was just never told about it.
I'm going to have to scrape enough money for a talk with a lawyer I think It's getting so complicated and I just want to get it over and done with. But I can't afford to walk away with the debts he left me and no share of our $260,000 pre-separation asset pool :/

 

[AllForHer]

Legal Aid offers free consultations for family matters, which I understand includes a property settlement, or alternatively, many firms offer the first consultation for free. Further to that, you can potentially negotiate the costs of the solicitor being taken out of the property settlement, rather than having to pay up front.

In my view, I think you have a case for seeking the funds from the property sale being added back into the joint asset pool for the division. It doesn't strike me as just or equitable that the funds from a home you jointly owned are returned wholly to his family's pool of assets. But, with that said, there are so many ifs, buts and maybes that could influence my opinion either way.

Do you have the care of the kids now?

 

[AllForHer]

I've just read over your other threads, and see that you do have care of the kids. If I may ask, what was the court's take on the e-mails recovered from the hard drive? Has that come up for consideration yet?

 

[Tamsin]

It has never come up. I included all the emails in my affidavit for the settlement hearing at the end of 2014, but he failed to disclose any documents. The judge couldn't determine the asset pool and said he legally had to give him a chance to supply the documents. He has been delaying since then.


I applied for legal aid more than two years ago but was rejected. The property was an investment property and legal aid told me they only help for cases involving the family home I can understand that, it's just hard when you don't meet the criteria.

And yes, I have full care of the kids now That's one good thing!

 

[AllForHer]

I see. Unfortunately, I really do think a lawyer is the way to go in this case, for legal advice at the very least. If you did engage a lawyer, you might have grounds for seeking that your ex pay your legal fees, as well. I'm sorry I can't be more help, I would hate to lead you astray on something like this.

 

[Tamsin]

No worries, and thank you