Print Page | Close Window

Mortgage / property title

Printed From: AussieLegal
Category: Family Law, Defacto Law
Forum Name: Divorce, Consent Orders, Binding Financial Agreements
Forum Discription:
Printed Date: 23/April/2019 at 02:53

Topic: Mortgage / property title
Posted By: 4mygal
Subject: Mortgage / property title
Date Posted: 26/September/2017 at 22:16

Separated for almost 2 years. Divorce has gone through.

Prior to separation we were 80% through building a house.

After separation we had a verbal agreement that I keep the house and the mortgage and kept working on it - doing another 10% of the work with my own money.

Till lawyers got involved....

Since separation the OP hasn't contributed a cent to the mortgage or expenses (around $3k per month) and has made it clear that they will not contribute anything in the future either.

I want to keep the house as it will be all I have after this mess is over and I sold several assets ton fund the purchase of the land and the build. Essentially the vast majority of the funds were mine.

Since soon after separation it has stood unfinished. Can't rent it, can't refinance it, can't live in it and can't finish it. Yet, apparently there is not a thing I can do???

Of course, the OP has dragged things on nicely. I seriously can't wait the 2-3 years it will take for a final hearing and I don't see how it's fair that the OP refuses to pay anything, but will benefit from the continual increase in value.

What grounds or legal avenues can I approach to remove her from mortgage and title?

I have an application under way and have been advised a payout figure that is generous. The OP has refused to cooperate and added nearly 200K to the figure.

Something that I can't pay.

Should I keep the house I do have the means to finish it and refinance.

Note that during this time the OP has been living in our unit, so they have no 'need' for the house.


Posted By: Luisa
Date Posted: 27/September/2017 at 09:36
Let's get some facts. How long were you together? How long ago was the divorce? Are there children? Who was earning what during the time you were together? Is the unit paid off, or are they paying it off? Where are you living?

Posted By: 4mygal
Date Posted: 27/September/2017 at 11:31
Hello Louise,

Together 5.5 years, married 5. Divorce is 6 months old. 1 daughter in her care (my application is for primary carer). We earned equal, me more while she was on Mat' leave. Unit is not paid off, she is living in it and covering expenses, I'm living with new partner.


Posted By: Luisa
Date Posted: 28/September/2017 at 09:47
So it should be add up all assets, subtract all debts and half what is left, with small premium to primary caregiver.
How much assets all up? (inc super)
How much all debts?
Then you basically get half of what's left. So can you jiggle juggle so you get to keep the house?
I would suggest you file for property settlement now because if you wait that last 6 months will come and go and you'll have missed your chance.

Posted By: 4mygal
Date Posted: 28/September/2017 at 19:55
Thanks for that.

Without knowing finer details I think the presumption of 50/50 shouldn't be automatically assumed.

At time of marriage the asset pool was 99.5% my way .5% hers. Not an exaggeration and I'm probably being generous.

I've been advised by my barrister and the registrar that 20% her way is about right. She also has primary care (against my wishes and my application is for primary carer) at this point in time and have made an adjustment her way of 7.5%.

We offered her 30% and she counter offered 50%.

Have filed for both property and parenting (I'm the applicant) long before divorce.

It just annoys me that she has a moral (legal???) obligation to pay her share and has point blank refused to.

In the mean time, the property she doesn't want and has hardly contributed to keeps going up in value (making her richer) while I'm keeping the asset in the pool by paying the mortgage and all expenses (making me poorer).

Apparently there is NOTHING I can do... surely not?!?!?

Posted By: DoogleMcFroogle
Date Posted: 29/September/2017 at 10:16
Asset pool at time of marriage doesnt really matter unless a very short relationship.

Counter offer 60/40% in your favour. However 50/50 is more than fair ( or include that you want other assets in your favour - ie: vehicles, she cant touch super ), as if she fights for it, with her being primary carer, she may end up with 60/40 in her favour.

Dont think about the little things/trying to get as much as you can - think about what it could cost you in court and legal fees, and if it is easier to just get it over and done with, or to pay out lawyers ( Lawyers are the real winners )

Posted By: 4mygal
Date Posted: 01/October/2017 at 13:09
What is the definition of a short marriage?? We were married 5 years.

So, if you were in my situation, you met someone with $3k of assets compared to your $650k assets.

You got married, all those assets went into the pool to benefit both. So, after 5 years that gets split 50/50?? That sounds fair I guess.

Over the course of our relationship we had identical incomes.

I'll add more. During the relationship just over $100k was taken by my ex to support her extended family and funnelled into her private accounts. Only learnt of this from financial disclosure. That money has not been accounted for in the ledger, apparently will only be looked at in the final hearing.

Oh, 1/3rd of the asset pool is made up of 2 properties. 1 an inheritance from my parents of a commercial property that has no mortgage and has been paying rent to 'us' the entire time. 2) An investment property with a tiny mortgage that was grossly positively geared and never cost 'us' a cent, quite the opposite actually, it made 'us' money.

Both assets acquired several years prior to meeting my ex, in the time we were together she never set foot in either of those assets, nor had any interest in them other than knowing they were there and making money for 'us'.

She now deserves half of those as well??? Have suggested that they get removed from the asset pool. Apparently only a judge can decide that at the final hearing.

She is primary carer due to withholding our daughter by force.

Seems totally fair....

Posted By: citizen-joe
Date Posted: 01/October/2017 at 15:48
You certainly have a good case to retain some of those assets, 5 years is just over the 'short marriage' threshold, but these things are not set in stone.

Certainly you should retain the inheritance property and I would expect the investment property also, but you need a damn good family law solicitor working for you. Hopefully you should also be able to gain proper access to your child and stop your former partner withholding her. Talk to the lawyer you engage about this also.

Good luck.

Posted By: DoogleMcFroogle
Date Posted: 02/October/2017 at 16:43
OK - now that we have more information, I agree with Citizen-Joe.

Print Page | Close Window