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Will Son's Ex De Facto Have Rights to the House?

Discussion in 'Family Law Forum' started by twowrongs, 9 August 2016.

  1. twowrongs

    twowrongs Well-Known Member

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    Just wondering, my son and ex-partner bought a house together - they only lived in it for 4 months before the ex de facto walked out.

    When they bought the house the ex-partner had no finances to put toward the property - the mortgage is in both names - obviously, my son wants to keep the house ( and now has been in this house for 14 months total on his own supporting his 3-year-old son).

    My question is, if my son can change to mortgage papers into his name only and be able to keep the house, does the ex-partner have any rights to the house, and can my son ask or make the ex partner pay for half the mortgage payments that she has not contributed to since been gone?

    Also, my husband and I are guarantors for my son's house - the other question is they borrowed $ 407,000 and we are guarantor for $ 111,000

    My husband and I have talked to a broker ( Friend ) to see how much our son can borrow on his own and he will be able to borrow $ 382,000 so for our son to refinance and change into his name only question is because of the difference on original borrowing mortgage of $ 407,000 and the $ 382,000 he can borrow on his own if my husband and myself are able to up the guarantor amount by the difference for our son to be able to keep his home.
     
  2. sammy01

    sammy01 Well-Known Member

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    Is the kid from their relationship?

    This is messy. You've got family law and property law to deal with.... You're gonna need consent or court orders that provide for him to take over the title on the joint. For any asset division pertaining to property to be binding both parties need legal advice.

    I strongly encourage you to seek legal advice.

    I'd suggest selling the joint and agreeing to give the ex a few thousand dollars to go away. Don't wait. If you wait then it gets harder and worse. He could pay the mortage for 20 yrs pay the thing off then have to give her half the money when he sells it.
     
  3. Matthew Lynch

    Matthew Lynch Lawyer

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    Hi Higgo

    At common law if your son's ex-partner is listed on the title of the property she is entitled to joint ownership of it regardless of what the mortgage arrangement is. Your son will have to apply to the Family Court to transfer the property into his sole name otherwise she will always have a claim.

    A person who qualifies as having been in a de-facto relationship can bring a claim for an adjustment of the relationship property of the parties based on their contributions to the relationship (as well as other factors). Your son could bring an application seeking that he should be entitled to the entire ownership of the property as he has made the only contributions to it, although it is a complicated argument and hard to argue that she should get nothing if she was listed on the title and the mortgage. It comes down to contributions.

    How long was the relationship? Did the ex-partner work during the relationship on a full time basis or do any unpaid work during the relationship such as repairs on the house, cleaning, cooking or laundry or caring for your son's child? Non-financial contributions are taken into account by the Family Court.

    Please get in touch if you require further info.
     
  4. twowrongs

    twowrongs Well-Known Member

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    Hi Matthew,

    My son's relationship with the de facto was 2 years but they had only just bought this house and lived in it for 3 months when she left.

    She worked part time.
     

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