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Property settlement more than 12 months after divorce

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Hi all.

Despite trying to negotiate things with the ex over the house, the negotiations have reached a stalemate.

I have not heard from here in 2 months.

My question is:

It has been about 15 months since our divorce became final.

The house has us listed as joint tenants.

Therefore, does the Family Court always have jurisdictional or can the matter be taken before another court, whereby we would be seen as business partners in a house?

Cheers Holden
It should still be a Family Law issue. You will have to go to court if you cannot agree.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
HTHolden, note the time limits for property matters after a divorce becomes final. Have a read through the Family Law Act 1975. 

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
Liberi Primoris said
HTHolden, note the time limits for property matters after a divorce becomes final. Have a read through the Family Law Act 1975.
  Thanks mate, I am aware of section 44. I was just trying to work out what happens if the court does not grant leave. Would the house issue then come under a property dispute so that I would have to apply for a sale or partition order??
From the facts given. It sounds like a tenants in common matter which would be dealt with under the state courts, mind you I would also be inclined to be looking at the assistance which could be given by the Supreme Court (Equity). However, bringing a chose in action using the equity jurisdiction is quite a complex procedure. 

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
You have failed to reveal the grounds upon which you would rely on in seeking leave to file an application for Final Orders. It would appear that the second question is an alternative to the leave not being granted. The merits of you leave application are unknowns.
Leave is known to be allowed.
Does your joint tenancy suggest that you are both named on the property title? Or, is it a lease?
Who has possession of the property?
Is the property encumbered by a mortgage?
How long was cohabitation?
If so it would seem to be in the best interests of both parties to reach a negotiated settlement (consent orders) for submission to the Court for stamping.
Where are your negotiations bogged down?
Be mindful of the monetary and the mental costs associated with legal proceedings.
It would seem from what is known that the Family Law Act is the appropriate umbrella under which he parties can resolve this issue.
All other financial aspects of your relationship and possibly parenting issues come into play. The house is unlikely to be dealt with separately. Any partnership requires a communication,that does not appear to be apparent between you.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Thanks Verdad. The reason behind no settlement done as yet, is that we have not been able to agree despite communications. The title deed has us both listed as joint tenants. Cohabitation was only 4 years. The property was purchased during this time, with a mortgage. There is around $40K equity in the home. She is living in the house and paying the mortgage.
I would ideally like to do a BFA, but we cannot agree on how much either party is entitled to, specifically a $22K debt.
I would like her to take on the debt if she refinances and thus gets the equity. However she thinks I should be 50% responsible for the debt, but is not willing to apply a 50/50 division to all the assets, only the liability.
Firstly, you are seemingly both joint owners she being the tenant.
A 4 year cohabitaion is generally regarded as a "short" marriage. What flows from that is that the "erosion principle" up to that time has not significantly affected the intial contributions of each party. Thus each party can expect any pre-cohabitation contributions to be relatively unaffected. This based on a childless marriage.
It ramps up and into 75(2) factors if children with future needs exist.
Her payment of the mortgage is a continuing contribution. This tends to add to her caims. Getting her to be accountable for a rental component is challenging unles there exists a written agreement of some natue. Your getting an offset is problematic perhaps.
A BFA (Binding Financal Agreement) is obviously what you need.
If you haven't already create a Balance Sheet.
Section 81 of FLA intends that the variation of propertyresults in some finality for both parties. Her expectations of you paying half the debt may be affected by that.
Establish if possible how the settlement might look without the property. Then try to identify how the property and it's factors may be intertwined.
Part of your calculation might involve pre and post separation financial (contributions) facts being attributed to each party. That would include you being demed to be a negative contributor in regard of mortgage payments since her accepting responsiblityfor them.
Collaborative law could work in your case. Yet with such a small pool of assets any legal expenses ae unwarranted.
It appears you need a mediator.
With her resident in the home and the mortgage continuing your strategy could have more urgency than hers as I understand it circumstances are favouring her in respect of the house entilements as time passes.
Keep trying to sort it through negatiations as the legal industry does not care if she has a roof and you any funds at all.

FAMILY LAW ACT 1975 - SECT 81 said
Duty of court to end financial relations
                   In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
thanks mate. I guess I will keep on negotiating as best as we can.

mortgage payments post separation

Hi all. Just following up on something that was said on an earlier post of mine. (Cannot seem to put this on that post as the "quick reply" has vanished!)
If one party has been living in the house and paying the mortgage and land rates (but no improvements to the property) post separation, are they entitled to a greater share of the assets when a settlement is done? If so, what sort of % adjustment would there likely be?
Keeping in mind that prior to separation the financial contributions of both parties was similar.
Cheers
HTHolden,
              there are restrictions on consecutive posts. I've moved this post into the relevant area. However should this happen again you can; edit the current last post (whilst edit is available, as this is limited by time), request one of the moderators to add the post (has the mod's id as the poster though) or request one of the moderators to make a post so you can post. Moving posts is quite time consuming.
Thanks MikeT…This is where I tried to put it the first time 'round!!
HTholden said
If one party has been living in the house and paying the mortgage and land rates (but no improvements to the property) post separation, are they entitled to a greater share of the assets when a settlement is done? If so, what sort of % adjustment would there likely be?
  They are entitled to a greater share. Isn't their contribution increasing as yours remains frozen.
Imagine some scales with two vessels. If one side causes the other side to rise, then the addittional weight of the party continuing to add to their side ought to favour them, as you would expect if you were the party maintaining the property in a financial sense.
Add to that that the court might consider your action of not contributing a 'negative contribution' and for that to be considered under s75(2)(o).
Every minute the percentages are changing when the other party is contibuting when you aren't. You appear to be seeking an response to a calculation for which insufficient information is available.
It really requires setting it down in a comprehendible format so both parties and if necessary the court can see what the situation is.
You appear to be focusing solely on the house, the court goes deeper than that as it must in operating under FLA.
If you continue in the current stance by the time you get your matter heard in an overloaded court you may not be entitled to any equity in the house.
Your choice?

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Thanks Verdad. I am not sure that this is fair to the party who is paying rent however.. Why should a party who is forced to pay rent on another property be entitled to less of the asset, simply because one party stayed and is paying the mortgage while the other party is forced to spend money on accommodation elsewhere? To borrow your scale analogy...If one party paid rent and also paid toward the mortgage, then their vessel would be a lot more empty that the other persons vessel. I probably would agree if the mortgage payments altered the principle amount of the loan, but when has paid interest only, then surely the fact of one party paying rent would be considered as a valid reason why they did not contribute toward the mortgage. The mortgage payments have not increased the equity, so why should they provide greater rights to assets?
HTholden said
I am not sure that this is fair to the party who is paying rent however..
It possibly not is fair as you suggest. The law does not always operate on fairness when it is material facts that count in court. If your name is on the loan contracts it is your legal responsibility to service the loan. The other side can argue that they protected your credit rating by undertaking your responsibilities amongst other things.

HTholden said
 Why should a party who is forced to pay rent on another property be entitled to less of the asset, simply because one party stayed and is paying the mortgage while the other party is forced to spend money on accommodation elsewhere?
It is for you to argue that your needs are greater than the other party, but that falls under s 75(2) of FLA. The court divides the issue as you see it into two not necessarily connected issues. Not as you might see it. It is not for me to justify or defend the four stage s 79(4) process the court utilises when considering property matters. I can only share my observations.

When you assert that you are "forced" to pay rent, it could be required of you to substantiate that with evidence. The other side can argue that you had an alternative. You might have opportunity to live with your family or The onus is on you to establish wherein the "force" arose. For instance a share rental. A person might choose to rent a luxury rental property rather than a less expensive one and contribute to the mortgage. Your reading of legal reasoning might assist you to comprehend how these matters are dealt with.

HTholden said
 To borrow your scale analogy…If one party paid rent and also paid toward the mortgage, then their vessel would be a lot more empty that the other persons vessel. I probably would agree if the mortgage payments altered the principle amount of the loan, but when has paid interest only, then surely the fact of one party paying rent would be considered as a valid reason why they did not contribute toward the mortgage.
If you pay the mortgage you protect your asset. Actions are also evidence as well as words in Court proceedings. Your inaction could be argued to be an abandoment of your right to the property. In court proceedings contributions are factored into the variation of property under s 79(4). Do you concede that the party paying the interest has contained the growth of the loan. Is that not a factor to be considered. You have had an opportunity to contibute equally to the interest payments. Failure to having done so is weighed against you. If you paid towards the loan, the loan would be reduced. The equity would then be enhanced.

HTholden said
 The mortgage payments have not increased the equity, so why should they provide greater rights to assets?
The mortgage payments in effect maintain a stable loan figure. Be mindful that property values are on the rise again. So might your share of the equity be  diminished as the property value increases? The contributions in respect of the purchase and maintenance of the loan and the property itself are what is weighed. Your sense of fairness unfortunately is less imposing on the outcome as Family Law Act is applied.

The importance of your getting the negotiations happening is of paramount importance to you. If you can appreciate that there is a tendency for outcomes to favour the home resident then you could have held your ground and caused the other party to leave. That's hindsight. Getting the outcome sorted and living without any further diminution of your position is of value.

Be mindful that the financial relationship is alive until you have orders (consent or court) and that the 'clock is ticking'.

What your trying for is a Binding Financial Agreement under s 90B, s 90C and s 90D and ensure that that agreement contains a clean break separation of your financial relationship. Use s 81 to obtain the clean break and get yourself removed from having responsibility for the loan.

You have not provided a wholesome overview and it is therefore not known what other sticking points might be involved.

A judge I appeared before told me that he had heard three cases involving a couple. He then went on to explain the couple had married three times. So judges are aware that some couples do not always digress into acrimony. There is always a legacy from these situations. What will yours be?

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
Thank you Verdad for that excellent answer, you have explained things better than all the other legal stuff I have read!! I totally agree that a BFA is my best way out of this mess, and am happy to leave with nothing...All I want is my name off the mortgage! Will have to wait to hear from her then....
options are, seek leave of fam ct to commence proceedings about of time.  But the longer this is left the harder it is to get leave. I wouldnt wait for more negotiations.

If dont get into the Fam Ct, the general property law can appply. But this is supeme ct stuff.  But dont her dont have s75(2) factors which may or may not be to your advantage

Consider severing the joint tenancy, its easy and protects your estate if you die before its sorted
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