QLD When Can Property Settlement be Done?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

needing info

Active Member
30 July 2018
7
0
36
I am writing this on behalf of my father-in-law. He has just separated from his wife of 50 years. They are both retired and on the pension. My MIL decided she had had enough and left a couple of months ago, stating he could either sell the house and give her half or keep it and it would be sold and divided between the kids when they are no longer here.

She has since decided that she needs money to start her new life, which is fair enough, but sent him a letter stating she has had some legal advice and it will be cheaper for them to agree rather than pay solicitors, and she now wants him to sell everything they have - house, caravan, contents, etc., and she wants half.

I know it is very hard to say who gets what in a separation as he has provided all the income but she has raised 6 kids. The oldest now being 30 years old, but he is not ready to do any of this at the moment as it has only been a couple of months and I do not think he has even come to terms with the separation.

Can anything be made legal if they have not even been separated for 12 months to apply for a divorce? Can she actually make him sell everything now if she gets solicitors involved even though they have only been apart a few months?

I know you have to be apart for 12 months before you can get a divorce but not sure on the separation and property settlement.

Any help I could pass on would be greatly appreciated.
 

Shanahan Law

Well-Known Member
LawConnect (LawTap) Verified
30 April 2018
25
12
149
Sunshine Coast
www.shanahanlaw.com.au
There is no hard and fast rule that these sorts of splits are 50/50, but based on what you've said I think a court would probably end up ordering something like that. If the MIL can get her 50% without having to sell the home - e.g. if your father has enough superannuation and other assets/cash to give to her to make up the 50% - that might be preferable for your father. If he can't do that, a court would likely order the sale of the home.

Unlike divorce proceedings, there is nothing to stop MIL from commencing court proceedings for a property division at any time following separation. It is only once a divorce order is made that a time limit will be imposed for the property division - 12 months from the divorce order.

If an agreement can be reached as to the property split, it should be formalised in consent orders or a financial agreement that complies with the Family Law Act. If it is not, it won't be a full and final agreement and either party can apply to the court later on for a different result.

Hope that helps.
 
  • Like
Reactions: CSFLW

needing info

Active Member
30 July 2018
7
0
36
Thanks for that - they used all his super to pay out the house and any other debts they had when he stopped working so all they have is their assets and their pensions. I think he was hoping to have some time to process all of this but if she wants to proceed then she can.

If he is not ready to do anything yet as I said he is not even sure of why she walked away can he just wait for a letter from her solicitor and if they are both on the pension would they be eligible for any legal aid??
 

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
For the minute he can do nothing.... Just deal with the obvious stress of it all. The asset stuff can wait. I'm assuming both names are on the title of the house? Doesn't matter all that much.

So does he have anything in super? Some other info for you. Household items are not valued based on what they paid for them... As a rough guide - what they would get at a garage sale..

He should refuse to hand over a cent unless there is a binding agreement... So he agrees to give her $10 000 after selling the caravan.... She spends it on the pokies... Or whatever. That money is now gone. He should not agree to hand over a cent unless it is accounted for as part of the whole asset division.
 

needing info

Active Member
30 July 2018
7
0
36
No he doesn't have anything in super they used all that when he finished work to pay off the mortgage and any other debts that they had. Yes the title is in both names.
Thank you for the advice - very sad when you get to the age when you are ready to enjoy your retirement and then have to go through this.
 

needing info

Active Member
30 July 2018
7
0
36
A quick update - my father in law received a letter from her solicitor asking for everything they own to be valued so she can half of the amount. He replied through his solicitor that he was happy to sell house and give her half and she could keep the furniture and he would keep his tools and they have a car each.

They immediately replied saying that she refused that and wants a valuer to value everything with shared costs of the valuation and wants half and they have lodged for a court date. They have now sent another letter stating they want him to list everything in the shed/house so it can be valued. His solicitor does not seem to be pushing back on anything as they said the more letters the more costs but it just seems like he is not getting much say.

He paid 3300.00 for this solicitor to get agreement and consent orders but now it looks like going to court it will cost him more. The tools are just all second hand - means a lot to him but do not think it will add a lot to the value. Just getting very frustrating for him as he is not well either so this is all taking a toll.

Does this all sound right - not pushing back? His solicitors are saying they have never dealt with the amount of correspondence they are getting before it is not the usual practice. The get a letter before they respond to a letter. They do not understand wanting a valuation on the house as it will be sold and they have appraisal already from real estate.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
Does this all sound right - not pushing back?

In this instance - yes. The court needs a full and frank disclosure and both parties must abide by this requirement. There is no point pushing back because it just costs more and you end up at the same place - list of assets and valuation.
 

needing info

Active Member
30 July 2018
7
0
36
After my sister in law spoke to my MIL yesterday she was not aware of all the letters her solicitor was sending and said all she wanted was half the house and the caravan worth which is what my FIL was offering plus the furniture in the first place. she has not paid anything to her solicitor but was getting the bill at the end of it all. She was going to speak to her solicitor today. If they come to an agreement will be able to be settled without going to court and put into consent orders. She was not even aware her solicitors had lodged for court or turned down the first offer which is what she would be happy with???
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
Then the MIL's solicitor is not acting in the interests of their client.