WA Property settlement

[Perth]

Hi

I have been a SRL, whilst the OP is represented by a solicitor. The case is currently with the case manager for a Readiness Hearing date to be set. Conciliation conference had no result with the OP being combative towards both myself and the Registrar - to the point of the Registrar warning the OP that if it continued the conference would be abandoned and relisted for one month's time. He is asking for a 72/28 split of assets. The main asset being the house (small mortgage and 50.50 Joint Tenants) and Super. It is a small asset pool. Married for 18 yrs, neither party had any pre-marriage contributions but OP did have debt, no children of the marriage, I have an adult son with health issues that I am full time carer for, I have worked during the marriage but retired in 2012 and only worked casually since, currently on Centrelink benefits with no super of my own.

I consider the 72/28 split to be unreasonable, but do acknowledge that the OP did pay a bulk payment into the mortgage and so to allow for that I am asking for a 60/40 split in the OP's favour. I am resident in the home, but the OP is paying the mortgage etc because of my significantly reduced lifestyle since separation. I am grateful the OP is doing that. The OP has now resigned his employment stating health issues, and is now partnered and in a defacto relationship and this was the real reason the OP resigned - to join the defacto in another district.

My question is what impact does this defacto relationship have on our property settlement? I notice in the Papers for the Judicial Officer this question is raised and needs to be addressed I presume. Also, can the OP add back the mortgage payments that have been made in full after separation, and should I also include these on my Assets/Liabilities to favour the OP? I will argue the OP attempting to add back the legal costs the OP is incurring as these payments have been made from the OP's post separation income.

Any help would be greatly appreciated?

 

[Atticus]

A few thoughts & questions to get a better picture of circumstances ... Only need brief answers

I have an adult son with health issues that I am full time carer for,

Are you (or son) receiving benefits for the health issue, or any payments from other biological parent ?

retired in 2012 and only worked casually since, currently on Centrelink benefits

Type of benefit?

the OP did pay a bulk payment into the mortgage

When was it paid, how much & what was the money from (For EG, Money earned during relationship, inheritance, other?)

I am resident in the home, but the OP is paying the mortgage etc because of my significantly reduced lifestyle since separation.

How long has he been paying mortgage? ... do you contribute at all? .... Why is your lifestyle reduced?

My question is what impact does this defacto relationship have on our property settlement?

How long have they been living together? ... do they own real estate together?

Also, can the OP add back the mortgage payments that have been made in full after separation

Yes .... Post separation contributions such as these should be taken into account when assessing a final division

I will argue the OP attempting to add back the legal costs the OP is incurring as these payments have been made from the OP's post separation income.

Each party is responsible for their own legal costs .... Can't be paid for out of pre division assets pool or added back

 

[Perth]

Hi Atticus and thank you for your response.

1. Yes
2. Jobseeker but claim is being processed for Carer Allowance/Payment.
3. 2012. $120k. Superannuation - his.
4. 2 yrs. Only for maintenance of property, utilities. Comfortable lifestyle to meagre lifestyle now.
5. Just over 12 months I believe. OP is not disclosing that information. Defacto has property but none jointly.
6. That is helpful. I will include it in my schedule, as I am not disputing the payments.
7. Thank you. My argument will hold.

 

[Poidah]

asking for a 60/40 split in the OP's favour

Attitus, is it worth proposing a draft consent order (unsigned) anyway?
Would a draft conset order be a good way to document her official proposal to him despite his hostility? His difference from 72 to 60 of super will likely be eaten up by his own legal costs. A good draft of a consent order might be good argument and allow the court to enforce arbitration to help reduce their court time as well. His lawyer will be forced to discuss the legal costs and court time as well, when a draft consent order is offered. His lawyer would prefer court time and prolonged engagement, so without a draft consent order, such discussions may be more difficult?

 

[Atticus]

Thanks @Perth

My question is what impact does this defacto relationship have on our property settlement? I notice in the Papers for the Judicial Officer this question is raised and needs to be addressed I presume.

This particular consideration is specifically in the context of adjustments to do with spousal maintenance, as a part of the broader issue, ie, alteration of property interests (property settlement) & is mentioned in the act at S75(2)(m) >>> (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation ..... Basically, it's to ascertain what weight (if any) should be given in consideration of an adjustment on the basis that one party is in a position of advantage by way of financial support .

The relationship he has (2 years) is short, they own no property together, & as a consequence there really ought not be given any weight to it, (IMO) ie, no adjustment against him .... May be a different story if he were in a long term, stable relationship, with significant assets

Assuming your adult son will need to remain under your full time care, then that is a situation in which a s75(2) adjustment should be made in your favour, also as it may impact on your future earning capacity/potential .
Ascertaining what weight that warrants in your case, will depend on what actual dollar figures you are talking about (in the asset pool) as well as the degree & length of care involved... Professional medical reports etc would be of benefit for this perhaps

Your ex has helped considerably in reducing the mortgage by his lump sum of $120K, & his ongoing monthly payments that have allowed you to stay in the house with your son pending a settlement... I expect he has also needed to pay rental accommodation for himself as well during that time at his own cost ...

All else being more or less equal, ie, financial & non financial contributions being assumed as equal over the years, & assuming a starting point of a 50/50 division, your major adjustment would be around your duty of care to your son ..... His adjustments would be the $120K lump sum, & 2 years or so of paying the mortgage on a place in which you & son have enjoyed sole occupancy.... How much weight the court would give each if you can't agree would just be speculation .... For what it's worth, I think it would probably be closer to the 60/40 in his favour than the 72/28 he is proposing, but, stranger things have happened in family law.

 

[Atticus]

Would a draft conset order be a good way to document her official proposal to him despite his hostility?

Too soon for that .... either party can make proposals at any point, doesn't have to be in the form of a draft order