Property Settlement in difficult financial times

4 Feb 2013 - Divorce Property 

Property Settlement . We  have formulated some guidelines for a property settlement. The  advice below is a general but a handy guide to first steps in a Divorce property settlement. If you need other questions answered, or need to speak to a member of our top Family Law team about your particular situation, please phone us for a free 10 minute chat, or email us on enquiries@journeyfamilylawyers.com.au for a confidential and free chat.

As if people thinking about Divorce or separation in Queensland didn’t have enough worries with the floods and the cleanup! Now we have dropping house prices and downturns in business and share prices as well. This obviously impacts on peoples’ ability to get property settlement sorted and can result in more Court cases in the Family Court. Today I thought I’d talk about some strategies to help you through and also comment on the way this has been played out in Court cases and settlement mediations throughout the past year in my firm, Journey Family Lawyers, and also what I have heard from other Family Lawyers.

In property settlement, the first step is to calculate the assets. This is easily achieved by valuing the assets or selling them! Just be careful that you never rely on old valuations where property prices are dropping, you should make sure your valuation is no more than about three months old.

If you have Superannuation, then, like shares, the value may have dropped to a disappointingly low level. This is not so easy to swallow, and the best thing you can do is accept the losses and move on. It is what it is.

Values of assets are an issue for the final stage of property settlement proceedings under section 79(4) of the Family Law Act. But what happens during the initial separation? In our article, “Separation advice: Before you go“, we talk about strategies for those early, difficult days. It helps if you think about separation in two stages, the interim, immediate stage and the long term plans and outcome that you want to achieve.

So, close your eyes and take a deep breath. I want you to visualise how your life will be after you have sorted this mess of separation out. Some people see themselves in a rented unit or house, others see themselves in their own home, bought with the proceeds of sale of the joint property, and still others plan to buy their partner out of the current joint home.

Whichever plan you have, you can see that it won’t be achieved instantly, no matter how amicable your settlement will be and however friendly your separation is. In the current housing market, you can expect to have your house for sale for over 100 days before it may sell. You may need to consider reducing prices. Don’t worry too much, because you will be presumably buying your new property in the same low market.

But, you need a short-term plan as well. One that can keep you comfortable and secure until the finances are untangled. This is the tricky one. So, a couple of FAQ’s.

  1. The person who stays in the family home usually has to pay the outgoings, such as mortgage rates and insurance etc. I say usually, because there are exceptions, such sometimes where the children are in the home as well, or where the bank is chasing the joint mortgagors. The idea of the person who stays being responsible for the payments is one that the Family Law Cases has generally endorsed on the basis that the other party presumably has to get their own accommodation and will be paying for that.
  2. Leaving the home does not mean you have somehow abandoned your right to have it considered in ten property settlement.
  3. If you have a car registered in the name of one person, but it is agreed that the other person can have it in the short or long term, that is fine, but if the non registered user of the car does not pay the registration, or insurance, then it is the registered owner who may be liable.
  4. Medical insurance is usually in the Family Rate at the time of separation. Be careful about relying on the other party to make the premium payments. I often advise my clients to check that the payments have been made each month. Ultimately you need to get separate health insurance but many people find it easier to keep it joint in the short term, especially when everything is in chaos in the early weeks of separation. This is particularly useful and important if you have kids.
  5. Furniture, whilst important is not the be all and end all. If taking a particular piece of furniture is going to damage your relationship further than it already is damaged, you might like to reconsider. If you take the ” removal truck” option, where you take everything and just leave very little, then you should not be surprised if your ex will not negotiate with you on the rest of property settlement. Try to be very fair. It may pay off when it counts, say in property settlement or in kids matters.
  6. Take all of your papers, and copy all of the joint ones, or take them and copy them at a later date. You can always give them back. But you may spend a lot of money with lawyers finding out information that was already available to you in your cabinet before you left.
  7. Finally, take your photos, trophies, sewing, tapestry, music or rock collection, or whatever it is that is precious to you and irreplaceable. If it should be shared, you can give it back later, or have it valued later, but if it is one of a kind, and valuable mainly only to you, take it now, when you go. Otherwise I am afraid it may well disappear (I have seen it happen often), or be regarded as unimportant by the Judge in the final property settlement. These are the things that you will regret losing and for which money is not a substitute.

So get yourself settled in a way that you can afford, with the things such as insurances and your personal items safely with you. Don’t upset your partner unnecessarily. Make sure that between you both all the bills are still being paid. Be aware that this is just a holding pattern, and don’t let the emotion of the break-up make you foolish about these things.

Think about what you want to achieve in the future with your settlement. Reality check this with friends and then give your lawyer the goal posts. Hopefully a friendly civilised property settlement will be yours within the year!

Our firm knows the pressure that unresolved property issues brings to your daily lives and we will do everything we can to get a speedy resolution through either mediation, negotiation or if necessary, strong and decisive representation in Court.

I hope this helps, email me or send a question to Journey Family Lawyers at enquiries@journeyfamilylawyers.com.au. Someone will get back to you usually within a couple of business hours for free. Or phone us on one of the below listed numbers for a free 10 minute consultation

Kind Regards,

The Journey Team

63 Comments

63 responses to “Property Settlement in difficult financial times”

  1. Eva says:

    Hello,

    My husband and I are looking into purchasing a home. It has been recommended that we put the home solely in my husband’s name (as he is the sole income earner at present). I have been on maternity leave and will continue to be for a while, as we are growing our family.

    I had previous savings (before we even met) that will be the majority of what we are using as the deposit for the home. Approx 80% of my money.

    Our mortgage broker has suggested we only put husband’s name on the property, while both names go on the loan. This was for better tax benefits. While I don’t foresee any problems in the future, I just wanted to know what legal rights I had if something were to go sour in the relationship in the future.

    Would the courts look at my 80% investment when splitting the property if it came to this? Or would it go 50/50?

    I just have never considered giving my life savings in someone else’s name. Although it’s my husband, I just want to see where my rights would be. Unfortunately I have had family members do similar things and burned very badly in the end.

    Any advice you can provide would be greatly appreciated.

    Kind Regards,

    Eva

    • Bryan says:

      Hi.

      When it comes to property settlement, the court / law looks at all aspects including your contributions both at the start and during the relationship. The disadvantage of putting the property in one name is that the party can sell it or transfer it out and it is then difficult to recover the value of the asset. If there are plenty of other assets, it may not be a problem but if it is a major asset, it could be a problem.

      Hope this is of assistance. Let us know if we can assist further

  2. Paul says:

    Hi, me and ex split about 6 months ago. Not married!! Was together for about 16 years, my house has always been in my dad’s name as I couldn’t get credit at the time. I’ve sold.the property, her Nana lived out the back in a unit, she gave us 30000 to live there when we brought the house, my solicitor and there solicitors have been negotiating this and they put a cavet on property, we have agreed on giving her back 30000 and she will lift the cavet, me and my ex come too an agreed amount she will get and I had a legal binding document done.up, ( she is yet to have any legal advice!) she received the legal document from my solicitor and I advised her to get some legal advice and sign, now she is not going to sign it and she still had no.legal advice. Settlement is in one week!! What will happen? Thanks Paul

    • Bryan says:

      Hi.

      You have a number of options though they are probably not satisfactory.

      If the caveat is put on by the grandmother and you have come to an agreement with her, I would have thought her lawyers will lift the caveat at the time of settlement. Your conveyancing lawyers should be arranging that aspect.

      If there is still disagreement with your Ex, you could offer to settle the property and put the net proceeds in a lawyers trust account until you sort out your property settlement. Alternatively, you could let the sale fall through. You would need to talk to your conveyancing lawyers about the effects if that happened. If there is a caveat, it will lapse after three months if the person putting on the caveat does not commence legal proceedings.

      You have a very difficult situation and you need to see lawyers about it asap.

      Regards

      Bryan Galvin

  3. lisa says:

    Hi

    My Brother has gone through a divorce and settled on an agreement. At the moment his ex is living in the house that he pays with the two kids. She has them 4 days a week and he has them for the rest. They were required to sell the property however she is not letting his agent in to value the house. She has chosen her own agent which she is convinced will get a higher price and has threatened my brother saying that she will be forced to move herself and the kids into her boyfriends place. The house will be repossessed by the bank in a month and his ex does not believe that it will happen. She has refused to speak to any other agent apart from her own. My brother has gone to court to try and get the agent in however all he can do i request a property value from the API which hebhas to pay for. He has exhausted his options and has already spent 20k on fighting for an extra day with his kids.
    What are his options at this point and what can he do?
    Thankyou

    • Bryan says:

      Hi,

      I am not sure what your brother’s lawyers applied for when they went to court but I would have expected they would get Orders that would take the control of the decision making away from the Ex if she was being obstructive.

      Again, depending on the current Orders, we would probably look at going back to court to force the issue. If the bank have written threatening to re-possess the property, I expect the court would be agreeable to doing something. A lot depends on what has happened so far. It is hard to give specific advice without all the facts.

      If your brother wanted to see if we could do anything, I suggest he cone in and see us for an initial appointment. We could review his case and see what options are possible. We charge a flat rate for initial conustlations of $143. They normally take at least an hour and a quarter. After that he can decide what he wants to do but at least he has had a second opinion.

      Hope this assists. Let me know if we can help.

  4. Sharon says:

    My husband and I separated just over 4 months ago. He moved out and bought another house. We have a large property pool and he is an accountant and did up the settlement allocating 54% to me and 46% to him. We have 2 children – 16 and 14. The eldest is very high special needs and I have been the full time carer. I work part time because I have always been on call with the school and have to take him to lots of appointments. He is on a very special diet and I do a lot of cooking for him too. The youngest child does not want anything to do with her father so i have 100% care for her. The child with the disability has been going to stay with his father about once a fortnight. Now that my ex has found out that unless he has our son more than 48 nights it doesn’t count so he is saying he wants him more. I provide all his food when he stays at his fathers. My ex earned over $100,000 last year and I earn $40,000. I do not have the earning capacity for any more. We went to mediation and I was happy with the property split but not the ongoing maintenance. My ex offered $24,000 a year and I have to pay $7,000 for younger child’s school fees. We both then went to solicitors and now my ex is offering less ie only $21,000. His breakdown of this is $6,000 for me for spousal maintenance, $6,000 for special needs child and $9,000 for other child which includes school fees. His solicitor is saying that’s all I am entitled to and my solicitor disagrees. How can this be resolved without having to go to court?
    Thanks

    • Bryan says:

      Hi Sharon,

      You no doubt obtained advice about the amount of your property settlement, however it seems a bit low given your circumstances. Your future needs component with the special needs child as well as the other child.

      Similarly on the face of it, the maintenance component is also low. You haven’t mentioned the Child Support Agency and that aspect is also a relevant factor.

      You have tried mediation and that hasn’t worked. I would suggest that if you want to get a fair entitlement for both yourself and your children, you may have to consider legal action.

      The main purpose of issuing legal proceedings is not to “go to court” but to force the other party to accept a reasonable settlement. Most cases that commence settle within the court process. Also, what lawyers you are each using can have an impact.

      The short answer is that you seem to be on the back foot and you may have to have the assistance of the courts to force a settlement. Remember even when you commence proceedings, you can settle anytime if it becomes too difficult.

      If you want a more detailed assessment of your case, we offer a fixed price initial consultation for $143. They take about an hour and a quarter or however long it takes to work out your entitlements and what are your best options. If you want a bit of a “second opinion” and possible options,,you might like to come and see us.

      Hope this is of some assistance. If you want to take it further, let me know.

      – Bryan Galvin

  5. Maree says:

    Hi
    I am in the process of buying a unit. I am paying all of the deposit (money saved prior to relationship) and the property is in my name. I had intentions of buying prior to commencing my relationship when I found the right property. Now that I have found the right property, it has become “we” instead of “my” property (even though it is in my name and all costs have been at my expense).
    My relationship is relatively new, being together only 1 year and have lived together only 6 months. I’d like to know that when we move into the property that if I pay all the mortgage repayments, insurances and any ongoing costs that if we were to break up (which I hope not) that my partner would not be entitled to anything? I say this because, the money going into this property is money I saved for many years before meeting or co-habituating together.
    Secondly, if my partner were to make small repayments to the mortgage, will they be entitled to that contribution if a break-up were to occur?

    I’d like to know what I need to do that in the event of a break-up I am not out of pocket or owing money (preferably as little as possible).
    Thanks
    Maree

    • Bryan says:

      Maree,

      Hi.

      Once you have a defacto relationship in terms of the law, there are potentially serious property implications for you. At the moment you are probably not in that position as generally you have to cohabit for two years before it becomes a recognised defacto relationship.

      Once the law recognises a defacto relationship, if you subsequently break up, there are a set of rules that apply for determining a property split. You haven’t given enough information to work out your individual situation, but all assets of both parties go into the property pool. This would include real estate, superannuation, and so on, for both parties.

      The process then looks at other factors to determine a property split.

      If you are concerned, you really need to see a lawyer for a session to work out exactly where you stand and what your options are.

      Hope this is of assistance.

      Regards,

      Bryan

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