VIC Property Settlement Time Limit - Is It Too Late?

[Tan]

Hi,

My current partner separated from his wife in 2009 & divorced in 2013.

They have 4 children together, 3 of them mostly living with us while she sorted herself out. We were financially alone in all that but have always circuses to the ex’s demands to try and help the children have a relationship with their mum. However, things have become strained as she is having difficulty financially even though we pay for the children’s needs and paying her child support.

The problem now is that my partner's ex asked him to take out a loan for her and use the child support money we are giving her to pay for it when he said no she threatened to take him to family court over the property settlement. My question is:

1: Can she do this at this time?
2: He left with nothing back in 2009, what would she be entitled to?
3: As we have moved in to get her and I have brought everything into the relationship, can she touch anything of ‘mine’?
4: He has worked so hard to get out of the financial hardship he was in to support his children, while she sat back and took handouts and didn’t work, how can she step in and try and take what he has worked so hard for since the separation.

We have tried to do the right thing by everyone here, and it seems because we are financially sound (finally) and she isn’t, and we won’t meet her demand she’s threatening to take what she’s ‘entitled’ to.

Please help

 

[CSFLW]

Hi Tan

There seems to be three issues:

1. Child Support;
2. Family Law property settlement; and
3. Your exposure to the Family Law property settlement.

The child support issue is separate but the other two are related in some way.

Does your ex have a lawyer?

 

[Tan]

Hi,

No my partner doesn’t have a lawyer at the moment.

We have been paying child support as required through the child support agency that hasn’t been an issue until the ex had car issues. She wants us to take out a loan in our name but using the ex’s child support to pay for the loan (so it would mean we don’t actually give her the money, we pay the loan) because we said no to that she threatened us with court to go for settlement.

Hope that clarifies things a little.

 

[CSFLW]

Thank you.

Loan repayments do not constitute child support, unless it is via a private child support agreement.

If you need further help, please email, Joseph Carbone, Lawyer and Partner, Cooper and Sanders Legal - Melbourne, VIC - LawTap - Find a Lawyer & Book Online Instantly.

 

[Tan]

Yes, we understand that but the ex wants us to do that or she will take us to court as there was no settlement done after the divorce was finalised.

We will not be taking out a loan for her at all.

I guess my biggest concern is can she take us to court for settlement after all this time and if so is it settlement for what we have now or at the divorce time 6 years ago?

I have only lived with my partner for the last 4 years and I’m the one that has brought everything into the household. And he has worked his way up from nothing and debt left from her to where he is now.

 

[CSFLW]

The situation is quite complex, if you need further help, please email, Joseph Carbone, Lawyer and Partner, Cooper and Sanders Legal - Melbourne, VIC - LawTap - Find a Lawyer & Book Online Instantly.

 

[Tremaine]

Housekeeping: I'm not a lawyer and this isn't legal advice.

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What's the law say?

Section 44 of the FLA says there's a time limit of 12 months after a divorce has been finalised for a party to apply for a property settlement through court.

A property settlement filed more than 12 months after the divorce has been finalised will require leave of the court to apply.

The court will only grant leave if satisfied that a party to the marriage will suffer hardship if leave is not granted, and the applicant can show they have a reasonable chance of success. If these elements can be established, the court can exercise discretion based on a number of factors, including the length and reason for the delay in applying, and any prejudice caused to the respondent as a result of the delay.

If the court agrees to hear the property settlement application, it will consider a number of factors in deciding a property settlement - value of the shared asset pool, contributions of each party (financial and non-financial), future needs of each party and whether the settlement is just and equitable.

Whether your shared assets with your partner will be taken into consideration I think is dependent on whether your partner's contribution was sourced from the asset pool he previously shared with his ex, but being filed so far out of time, it's probably not likely that she'll be able to claim a part of your shared assets with your partner.

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What would I do?

If I was faced with the same situation that your partner is faced with, I'd look at the risks associated with the two options the ex has offered by saying that if your partner refuses to take out a loan in his name and pay it back in lieu of child support, she will seek a property settlement instead.

A loan:

• Agreeing to the loan is optional. Your partner can't be forced to do this on her behalf, and probably wouldn't even consider it if she wasn't threatening a property settlement. Why is she getting your partner to take out the loan? Why not take it out herself and use the child support payments she receives from your partner to repay it? Is it a credit rating issue?
  
• Agreeing to the loan won't negate your partner's obligation to pay child support (or not without a binding child support agreement, anyway). If the ex tells the child support agency that your partner isn't paying, they will chase him up for it, making him liable for the loan and the child support payments to his ex.

A property settlement:

• Is really expensive. Someone else might be able to correct me, but I don't think Legal Aid will fund property settlements? If the ex is chasing a loan for a car/car repairs that she may not have the credit to get for herself, her finances may well be in dire shape already, so paying a lawyer to carry out a property settlements some five years out of time might be a bit out of reach, especially if there's a low likelihood of success and the asset pool they shared wasn't very big anyway.
• Is pointless worrying about before it's been filed, since it may not end up being filed in the circumstances anyway.

Without knowing anything else about the issue other than what you've said, I would probably make the decision to refuse the loan, let her decide if she wants to try for a property settlement and deal with it when/if she decides to take that step.

But you should still get legal advice because I'm not a lawyer and there's a good chance I have absolutely no idea what I'm talking about and may be very wrong.

 

[Tan]

Hi,
Thank you for your reply.
There is a bad credit history with the ex.
We are definitely refusing to take out the loan no matter what & we will continue paying the child support as normal.
My partner and the ex had nothing asset wise except for a car, which was left with the ex.
He came into our relationship with nothing but the clothes on his back. I had brought our now assets into the relationship and he has worked hard the last few years to gain a few things himself. I guess I was worried that after all the hard work that he’s done to get out of the mess that he left, and that he took the children on full time and just because the ex is in difficulties now she could take it all.
Yes worrying about something that hasn’t happened is silly, but it’s frustrating when he got in and worked hard to improve things for him and the children and she hasn’t.

Might just take your advice and wait and see what transpires.

Thanks again for you advice.

 

[Rod]

1: Can she do this at this time!
2: he left with nothing back in 2009, what would she be entitled to?
3: As we have moved in to get her and I have brought everything into the relationship, can she touch anything of ‘mine’?
4: He has worked so hard to get out of the financial hardship he was in to support his children, while she sat back and took handouts and didn’t work, how can she step in and try and take what he has worked so hard for since the separation.

1. Unlikely
2. Likely nothing
3. Unlikely
4. Because she thinks she can bully your partner, her ex.

 

[Tan]

Thanks for that Rod, everyone is putting my mind at ease. I know

1. Unlikely
2. Likely nothing
3. Unlikely
4. Because she thinks she can bully your partner, her ex.

Thanks for that Rod & others. I feel a little more at ease now and we will wait and see what transpires. If it does escalate we will be getting a lawyer and fight for what is right.