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Forced Property Sale

Printed From: AussieLegal
Category: Family Law, Defacto Law
Forum Name: Divorce, Consent Orders, Binding Financial Agreements
Forum Discription:
URL: https://www.aussielegal.com.au/forum/forum_posts.asp?TID=24848
Printed Date: 19/November/2018 at 11:51


Topic: Forced Property Sale
Posted By: DaveJB
Subject: Forced Property Sale
Date Posted: 11/October/2017 at 08:16
Hello,
Just looking to see where I might stand in regards to by ex-partner forcing me to sell my house.
We lived together in relationship for 13 years, we had been separated since end 2012 and she moved out in August last year(not quite 4 years), we share custody of our 13 and 16 year old week on/week off and I do pay CSA. There have quite a substantial debt in regards to assets we have.
Have had property valued and super funds to get total amounts.
If I sold the property, there would be barely enough to pay-out the debt plus Real Estate plus Solicitors.
I'd like to make her a settlement package of cash and super, but if she refuses my offer, can she force me to sell the house.
the Mortgage and property are only in my name, she has made no contribution to the property, and I have been and am the only one maintaining the the property and servicing all the the debt.

In short, basicaly, can she force me to sell my family home

Hope that kinda makes sense-ish



Replies:
Posted By: Time101
Date Posted: 11/October/2017 at 09:58
Yes she can force you to sell.

She can refuse your offer to settle.
If you really want to keep the house make an offer to her that she won't refuse. Go slightly higher ... See what she want then try to make some arrangements.

Hope all goes well


Posted By: Time101
Date Posted: 11/October/2017 at 10:03
Super is not part of a split when your in a defacto relationship. She's entitled to nothing of your super. Unless you want to give her some %.
I gather from your post you both weren't married ??


Posted By: DaveJB
Date Posted: 11/October/2017 at 10:30
Correct, we weren't married.

I am of the understanding currently, that she is only entitled to 50% of the amount after debts are fully covered or paid.

I am also of the understanding that she is entitle to 50% of the Super pool.


Posted By: DaveJB
Date Posted: 11/October/2017 at 10:33
So if she can force the sale of the house, and there isn't enough to pay out the debts, then is she going to be liable for half of the remaining debt - I'm assuming no, so therefore she should not be able to force me to sell my family home, the home that I share with my kids


Posted By: Time101
Date Posted: 11/October/2017 at 11:17
Super is not included when Your in a defacto relationship. Not sure who told u that it is.
Have you had legal advice regarding these questions. Might be a good idea some offer free legal advice.
I'm in Perth.
It's 50/50 of children.
Banks doesn't care if it's children involved all they care is that mortgage is paid and if theirs a shortfall both are liable. Not sure if it different since you both weren't married.
She's entitled to a percentage of your asset pool if it small them she's get a smaller %.
Not sure who told you she's only get a part after debts are paid.... Not how it works... Unless you sell the home then give her a % is none is left over then there's nothing for her all goes to the bank.
Try to negotiate with her and come up with a figure.
Do you both going through courts ?

Good luck hope all goes well


Posted By: DaveJB
Date Posted: 11/October/2017 at 12:29
I'll try get Legal advice, still not quite clear but yes understand I may still lose my family home

Thanks crew


Posted By: Time101
Date Posted: 11/October/2017 at 13:26
Have got a friend same situation as you only difference she was with him for 10 years defacto.. She was told by a solicitor that his super she can't touch...
Abs her house value has dropped a lot.

Like I said before hope all goes well.

It's tough but I'm sure you'll pull through stronger. Peace :)


Posted By: rannii
Date Posted: 11/October/2017 at 14:37
when did super stop being included for property settlement for defacto couples.


As far as I am aware - there is not different treatment between "defacto" and legally married.


Posted By: Helpingafriend
Date Posted: 11/October/2017 at 16:56
Time101 you need to get up to date - the rules changed nearly 10 years ago

Super is included for defactos although the rules are different in WA
https://www.ag.gov.au/FamiliesAndMarriage/Families/SuperSplitting/Pages/default.aspx



Posted By: Time101
Date Posted: 11/October/2017 at 18:17
Yes sorry I'm referring to WA as in in Perth.

Good luck Dave.


Posted By: Robjohns2424
Date Posted: 12/October/2017 at 10:38
Hi, just thought I'd chip in.
I'm in Perth, went through defacto prop settlement in 2012 via Fam Court, Neither my or expartner's super were included in the settlement calculation although it was still required to be included in the disclosure documentation.


Posted By: emca01
Date Posted: 12/October/2017 at 11:22
Separated in 2012? Defacto have 2 yrs from time of separation to make a claim in assets through court... Title of house and mortgage are in your name? SWEET...

My thinking would be there is no asset division needing doing and if it does, let her apply to court to seek an redress through the courts
You get to live happily ever after...


Posted By: DaveJB
Date Posted: 12/October/2017 at 12:28
Yes, the Law states there is a 2 year limit, but, from what I have been told this wont hold up in the courts.

What is the point in having a law and a time limit if the courts ignore it anyway.

Oh and just for clarification, I'm Queensland


Posted By: emca01
Date Posted: 13/October/2017 at 07:51
has she made a court applicaiton yet? IF not chill... Nope the rules are pretty clear about 2 yrs. She will have to establish grounds for an extension. So she is already behind the 8 ball...

If she has not applied to court I'd suggest you stress less and get back to us IF she gets a court applicaiton...


Posted By: DaveJB
Date Posted: 13/October/2017 at 09:35
Thank you, I'll get back to you if any word.
Going to try make a settlement offer and hope for the best

Neither of us can afford to go to court, and I believe that unless there would a financial grain, no Solicitor will represent either of us, believe they'd more than likely advice to take the offer.

Thanks again, appreciate the advice


Posted By: citizen-joe
Date Posted: 13/October/2017 at 11:12
double post


Posted By: citizen-joe
Date Posted: 13/October/2017 at 11:17
Going to try make a settlement offer

Why on earth would you do that?
It was a DeFacto relationship and you have been separated for almost 5 years, you are living in your house, so what's to settle?

Do Nothing, the ball is in her court and she has failed to act in time.

She needs grounds to request an out of time settlement, does she have any? Can she give a good reason for making this? If not - I expect that the court will just tell her to go away.

What is she likely to get if she does have grounds? From what you have said the house has no net value, the loan is about the same as what it could be sold for. Is there any joint property that you have not told us about? If so who has that?

If there is no property to divide it is not necessary to have a property settlement, whether it's in time or out.

As I said do nothing.



Posted By: emca01
Date Posted: 13/October/2017 at 11:59
yup do nothing... Legally the house is yours IF she had been making payments on the mortgage for the past 5 yrs..... that would be a different story


Posted By: jaazzz
Date Posted: 13/October/2017 at 16:39
Originally posted by DaveJB

Thank you, I'll get back to you if any word.
Going to try make a settlement offer and hope for the best

Neither of us can afford to go to court, and I believe that unless there would a financial grain, no Solicitor will represent either of us, believe they'd more than likely advice to take the offer.

Thanks again, appreciate the advice


Wise move I think... Although she would have to include an affidavit in her property settlement application for applying out of time, if I have read your circumstances correctly, you have been in a relationship for 13 years & have raised kids together almost the whole time... I assume they are yours, but whether they are biologically yours or not, they are children of the relationship.

The point to that being, she at the very least, has made substantial & significant non financial contributions for the entire length of the relationship ... They are solid grounds. Quite unlikely she would be knocked back if she sought to apply... She would also have a valid reason to place a caveat over your title if she hasn't already... At some point in the future you are probably going to have top confront this.

If you have managed to share 2 kids 50/50 for over a year, I'm assuming you get along reasonably well on issues that matter... If you can make a reasonable offer & you can both avoid litigation, you most certainly should IMO & the sooner the better.



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Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks


Posted By: Time101
Date Posted: 14/October/2017 at 03:06
I agree on above comment. Jaazzz


Posted By: DaveJB
Date Posted: 17/October/2017 at 13:21
Just in regards to her applying to court for "extension of time", I assume she will have to post cost for this and that any actions she is liable.

this would make it an even less case for any financial gain.

Surely the courts would look at the the higher than likely financial losses for both sides to perform sale of property.

The current debt and add-on's will send both of us into debt, or does she just then walk away without having to pay anything - assuming sale of the property does not windfall enough to pay out mortgage


Posted By: jaazzz
Date Posted: 18/October/2017 at 21:52

Each party covers own costs unless ordered otherwise. I suspect if you can't reach an agreement on whatever you intend to offer & she feels there is no option but to apply to court to force sale of house in your name, then given the small equity, the court would order you off to mediate an agreement.

If the court had to make a decision & subsequent order, it has the power to alter property interests & apportion debt as it fells just & equitable in all the circumstances..

As I said earlier. Her legal advice would probably be to place a caveat over your title.. She has strong grounds to be granted an exception to the 2 year rule.





-------------
Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks


Posted By: DaveJB
Date Posted: 25/October/2017 at 08:08
Thanks crew for the advice.
Offer has been tabled, will get back to you all once I know more.


Posted By: Time101
Date Posted: 16/November/2017 at 11:52
Dave.
How did thing go? Any feedback. ??


Posted By: DaveJB
Date Posted: 22/November/2017 at 07:19
Nothing to report yet, although an agreement has been agreed to verbally, just waiting to see what goes from here now


Posted By: DaveJB
Date Posted: 06/December/2017 at 07:21
Financial Agreement signed off, my offer was accepted.

Thanks people for your advice, appreciate it


Posted By: Time101
Date Posted: 06/December/2017 at 22:42
Hi Dave.

Good news.

Would like to know what agreements you presented.
Great to see that all was done amicably.

PM me if you don't wanna post outcome on here.


Posted By: DaveJB
Date Posted: 11/December/2017 at 10:53
Main agreement was time and costs, but also property value against debt.

She did release that there would be large costs involved to get extension of time.
The offer I made was quite fair in my eyes and her Solicitor told her she was getting a great deal and to take it.

Thanks all



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