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QLD What are Son's Property Settlement Entitlements?

Discussion in 'Family Law Forum' started by jason bourne, 26 September 2016.

  1. jason bourne

    jason bourne Member

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    My questions are probably simple to answer:

    My son is/was in a de facto relationship with a woman who we know will not co-operate in any way shape or form with any type of consent orders or binding financial agreement.

    They have been in a de facto relationship for five years, but it has broken down irretrievably about 2 years ago. There are no children. They are both on the title of the property, but she is the only
    person on the mortgage. Long story...

    They both pay half the mortgage. His payment going directly into her mortgage account, therefore the debt is in her name only...

    Question 1: If the house is valued at say $800,000 and the balance on the mortgage is say $420,000, is he entitled to half the value of the property, or merely half of the residue after the loan is paid out...(ie $190,000)?

    He has made many improvements to the property, and spent hundreds of hours renovating, etc...

    She has three other properties, a considerable share portfolio, and a large super fund, all of which were acquired before the de facto relationship commenced. He had about $200K at the beginning of the relationship, which has been depleted somewhat since then. He is a day trader on the stock market, and does so from home.

    Question 2: Is he permitted to claim in any way on these properties/assets, bearing in mind she would not have been able to afford to keep them without his contribution to the mortgage? They have all increased in value over the last five years.

    Question 3: If she refuses point blank to discuss the issues, refuses to sign any documents, and refuses all attempts at mediation, how does one resolve the issues? Does the court take everything into account and make an order irrespective of her refusal to consent to anything, or does the status quo just continue on ad infinitum?

    Question 4: What does he do if she refuses to comply with any order for property settlement? How does he enforce the order for payment of x dollars if one is made by the court?

    Thanks in anticipation...
     
  2. sammy01

    sammy01 Well-Known Member

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    One thing that a court will consider is the length of the relationship. 5 years is considered short. So each party should expect to take out roughly what they brought into the relationship.

    Now there is a 2-year limitation on seeking court action after a de facto relationship ends. If he has not been living in the house and has been paying half of the mortgage for 2 years then he is mad. All that money has been wasted.

    Stop paying the mortgage.
     
  3. jason bourne

    jason bourne Member

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    Thanks for the reply.

    He is living in the house. It's not 2 years since the relationship broke down.

    What are his entitlements regarding the value/sale of the house and the other issues regarding lack of co-operation, etc?
     
  4. sammy01

    sammy01 Well-Known Member

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    he is entitled to about $190 000. If she agrees to sell the house, pay out mortgage and split what is left GREAT. Why won't she agree to that? Now if she is paying half of the mortgage and not living there will she is being more co-operative than you think.
     
  5. jason bourne

    jason bourne Member

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    She is a narcissistic b***h..can the court make an order if she refuses to sign any papers.
    The mortgage is in her name only but he is on the title as 50% owner...wtf...
     
  6. AllForHer

    AllForHer Well-Known Member

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    He doesn't have to mediate for a property settlement at all, though it's wise to do so. If she refuses to negotiate a property settlement, your son can apply to the Court for property settlement within two years of the relationship breaking down.

    There's no law about who gets what in property settlement; they're decided on a case-by-case basis. Legally, de facto relationships are considered very similarly to marriages, in that the Court will ask four questions to determine a property settlement:

    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?

    In this case, the house will be considered an asset in which both parties have a joint interest since they both benefited from it over the course of the relationship. This means it will form part of the joint asset pool, even if he isn't on the mortgage. Likewise, his payments on the mortgage will be considered financial contributions, even if they were made to her, rather than directly to the bank.

    The time spent renovating would be considered a non-financial contribution.

    The portion of the house that would be divisible between the parties is usually the mortgage liability, rather than the value of the house itself, so he'd most likely receive a portion of the $380,000, rather than a portion of the $800,000.

    If she refuses to comply with whatever order for property settlement is made, he can file for contravention proceedings to have the orders enforced.
     
  7. jason bourne

    jason bourne Member

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    Many thanks for your most informative answer. I wasn't aware that his future needs would be a consideration.

    She has several properties...he would be homeless and have to rent probably. Is this a consideration for the Court?

    Mortgage payments have been split 50/50. I think they are in front with the payments. The house is the only item in the joint asset pool.

    I have a feeling that she wants to keep the house...he just wants to be paid out. She has the finances to do so, but is extremely uncooperative.

    I'm thinking that a binding financial agreement or consent order will remain unsigned and he will have to apply to the court for a determination/property settlement.
     

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