QLD Separation and Property Settlement - How to Apply for Divorce?

[Noon]

HI,
I have 3 children to my husband. We've been separated for 7 years. At the time of separation, there was a domestic violence protection order against him, which covered myself and the children. Under that stress, I agreed to a 50% split of property at the time. He put considerable pressure on me to agree to this. Although he didn't particularly express any interest in having shared custody of children.

For a year after separating we lived together separated, I supported him financially; ie I paid the mortgage, rates, childcare costs, household bills, etc.

We were together 7 years, married 6.5, before separation. I earned the most money throughout our married life (although he put the deposit into the house). Also in the first year together I supported him financially.

I was the homemaker, and primary caregiver of the children. I left with a lot of debt due to the above, and ultimately went bankrupt, from which I am now discharged. He bought me a car as a loan when I went bankrupt but I am paying it all back to him.

I have full custody of children, as he has been sporadic in his interest in them. Every now and then he wants to see them on a play date weekly but can't sustain it and ends up dropping out of existence.

The past 4 years I have not worked full time. I've been at Uni, and I've taken the time to be MUM to my children who have needed me. (I worked full time when they were all babies). I am now supported by pension, but absolutely do not plan this to last much longer.Now that the children are okay and we are settled in our happy household, one's health has improved and we're all okay again, I will go back to work.

We need to get a divorce obviously as its been too long. As part of the divorce process, no doubt I have to sign off on a property settlement, and custody arrangement. He often SAYS he wants the kids, but he just wants to reduce his child support which he begrudges paying. They don't want to go to him either.

I feel that I made a very bad decision agreeing to a 50% split at the time. My solicitor at the time wanted me to go for 80%. I didn't take his advice though.

I have not had a partner since leaving him. He has had the same partner since before we split up. I believe they own property together but not sure.

Can anyone advise after this long, what are my realistic options please?

The divorce proceedings are unavoidable, and I don't want to regret what I agree to.

Many thanks.

 

[AllForHer]

So, when you say you agreed to a 50% split, does that mean that a property settlement of some description has already been completed?

 

[Noon]

Good question. I agreed verbally, and we instructed the conveyancer of the sale of our house to divide the proceeds (after fees) 50% each to our respective separate bank accounts. The real estate agent would have record of this as well.
I'm sure there would have been emails to him, where I indicated my agreement, however that is as firm as it ever got.

We kept our super separate and so the only asset was the house. We had a cheap car in his name and I think that got sold at the time with him keeping the proceeds. I then leased a $25k car in my name only. I no longer have it.
I had credit card and GE card debts from joint purchases which he kept a lot of.
We wrote up a list of household items to divide. It was mostly paid for by me, but he kept 50% of. That is literally the only written agreement.
The proceeds of the house sale was $95k.

 

[AllForHer]

A property settlement doesn't have to be in a set format for it to be a property settlement. If there has been agreement and proof of said agreement, then you may find the court will argue that assets have already been divided and thus won't form part of the settlement. Equity would also hold that you can't agree to a property settlement in an informal way and then wait seven years and try again for another property settlement. If you've already agreed on settling the house and the debts, do you actually still have any shared assets?

 

[Noon]

No shared assets.
We didn't agree on debts. It's just that all the debt was in my name and we never discussed it.
I'll need to put something down on my divorce application re property. With the benefits of hindsight I see how unfairly we left things.
Not sure what to do?

 

[AllForHer]

In my view, you should seek legal advice, but on the surface of the thing, I would argue that you would stand to lose more from attempting a property settlement than you stand to gain.

When you file for a divorce, you don't have to do a property settlement. Whether property matters have been settled or not has no bearing on whether the divorce is granted, because divorce is granted on grounds the relationship has broken down irretrievably (proven by at least 12 months of separation). Thus, you can simply apply for a divorce and be done with it.

Of course, you could attempt a property settlement, and for interests sake, the court determines property settlements using a four-step process:

1. What's the value of the shared asset pool?
2. What were the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?

However, trying to get a property settlement done through the court will cost upwards of $20,000. Your ex will also have a strong case for arguing the settlement was already completed, given that you agreed to the 50/50 split on the house and there are no other remaining assets. Realistically, too, 50/50 is fairly standard these days. I'm not sure why anyone would tell you to expect an 80/20 split - that's an extraordinary expectation when the only asset was a house.

But contact Legal Aid and ask for a free consultation. They'll be able to give you legal advice (rather than stranger-on-the-internet opinion) based on your unique circumstances. Hope this helps.