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Settlement when home owned prior to marriage

Printed From: AussieLegal
Category: Family Law, Defacto Law
Forum Name: Divorce, Consent Orders, Binding Financial Agreements
Forum Discription:
Printed Date: 17/December/2018 at 21:03

Topic: Settlement when home owned prior to marriage
Posted By: Scott R
Subject: Settlement when home owned prior to marriage
Date Posted: 01/March/2018 at 23:47
Hi all.

After advice on my settlement. Married under 3 years I owned my home outright prior to marriage. Not divorced yet. 1 child 1 on the way. Is my ex wife entitled to portion of my home. She stated prior to marriage that she would never touch my home. But now says she is going for it. Also same question for my super. She had no assets or super as she never worked. If so what do u think she would get if went to court.

Posted By: citizen-joe
Date Posted: 02/March/2018 at 03:29
The general rule was that if a relationship lasted less than 4 years each party kept what they brought into it.

However that was some years ago and applied when I went through this almost 30 years ago.

But these days it seems that can be modified, things to take into account are the period you lived together before marriage, number of children now or child on the way. Remember the child is partly your responsibility, and that includes housing it.

What ever the case you need to act promptly, the time that is passing now will probably be included in any calculation.

A property settlement can occur any time after separation, you do not have to wait for the divorce. If you can come to a mutual agreement and file a consent application this will be your least expensive option, even if you have to give way to her a little to achieve this.

Others will probably advise on the current situation as my experiences are out of date. But act promptly.

Posted By: Scott R
Date Posted: 02/March/2018 at 08:54
Yes I agree and am more than willing to support my kids. I am trying to keep out of court. I have taken responsibility for our marital debt. Given her the car. And cash. She has never worked so I feel she will flutter away the settlement and not preserve anything for the kids. I have had legal advice that she can take part of house although not half or near it. Just also wanted to hear any other who has been through similar and what outcome was. I will always support my kids and currently have 50/50 care arrangements

Posted By: rannii
Date Posted: 02/March/2018 at 10:13

Separated with 1 kids and 1 on the way.   I owned house and unit prior to relationship (both still mortgages) and had $100k sitting in offset of principal place of residence. He owned a low value unit. Sold house 1 before we moved in together, purchased house 2 as new home & I paid the $40k deposit outright. Was on maternity leave, so not a huge about of financial contribution my end: my rent from the unit and the 18 week Matt leave from government formed our joint funds.

I had a convertible prior, which was sold for a soccer mums car. He has a shoe box car. Furniture was mostly mine. I had to purchase our elder child’s furniture (bought jointly) off him at settlement. Medical bills pertaining to birth of second child were born by me.

Post separation I had both kids for 12 months without ex caring. Now he has them everyother weekend (when he cares to) only.

I walked in with 70% of assets and walked out with 40% of assets. And primary care of kids. My salary feel from about $130k, to $40k (due to part-time work to look after kids), his went from $100k to $200k (he felt confident to change jobs as I could financially support him).

Admittedly it was consent orders. I spent $24k agreeing to 3 of his proposals - he changed his mind whenever I agreed, until I threatended “enoughs enough, court”. For an 18mth relationship he got a fantastic deal, and would have gotten far less in court.   However pool would have been eroded for me - hence me agreeing.

My $500k unit was sold. There was no equity in principal house - I paid him $20k to keep that (2 years later). He kept his unit. I walked about with $20k cash. So basically, all I got was a house with a huge debt and next to no equity.

Posted By: Scott R
Date Posted: 02/March/2018 at 12:54
Wow the above seems very harsh. Sorry that happened to you.

Posted By: jaazzz
Date Posted: 02/March/2018 at 16:49

The general rule is that for a short relationship (under 4-5 years) each party gets back what they bought into the relationship, & any growth in equity during that time is divided 50/50.

That's without children... In your case there may be extra consideration given to your wife under sec 75(2) of the family law act. Basically to help compensate for the fact that she will be child rearing for some time with 2 young bubs (assuming that she intends to take on that role)

My advice to you is firstly seek out a good counselor that you can unload your frustrations on & that can help you manage the roller-coaster that may well be your life for a while.... It WILL get better, but there will probably be some challenges ahead & you will need to keep your cool...

Secondly, endeavor to sort out arrangements for shared care of the kids BEFORE you engage in property settlement arrangements... The kids are young, so you will have to accommodate that by way of a stepped plan that ultimately has the kids in your care for a sufficient amount of time so that they are able to form a meaningful relationship with you.. The norm for babies is frequent short visits... There is no reason that overnights cant begin by 12 mths old if both parents really want the kids growing up with 2 loving parents..

IMPORTANT.... Make EVERY endeavor to have this made into a proper parenting plan... Google what that is... There are places such as relationships Aust that can help you do this.. Although these are not legally enforceable like a court order, In the event that one party departs from the terms of the plan for no good reason, the plan shows intent & a court must take into consideration the terms of a PP if one exists, & why it's not working....

Care arrangements for children, & how much each parent is contributing to the care of children also factors into Sec 75(2) considerations in property settlements as well should it go to court, so the benefit goes beyond just asserting your child's right to a meaningful relationship with you & sufficient time with you to both form AND maintain that relationship..

I don't believe 3 years is long enough to affect your super, however if you have enough of it, it can be used as an extra bargaining asset rather than just bricks & mortar...

Lastly, Play by the book when it comes to child support.... Again that will depend on each parents care level & sadly there is incentive for the primary carer to maximise their care time & minimise the other parent for financial advantage... That's another reason you want something in writing showing intent regarding care if at all possible..

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: Scott R
Date Posted: 02/March/2018 at 18:01
Hi Jazz.

Thanks for taking time to reply. Much appreciated ! All sound advice. I have been told by legal aid that she is entitled to go for super as well as house. I have spoken to a few free legal services and had many different responses. So very confusing. I am permanently disabled and only work 30 hours per fortnight. Had no debt prior to marriage. I can’t see me recovering financially if she gets a large settlement. It hurts that she always said before and during marriage that she won’t touch house or super. Now is going against her word. When we met she said she can’t get pregnant so won’t use contraception (also her religious belief come into that) but all of a sudden was pregnant so I married her as I wanted my child to have the family I never had. Then after birth of first she said dr said there is no chance of another pregnancy but well here we are again. I never saw diagnoses or questioned her on this. I feel lied to and taken advantage of it hurts that I am so stupid. I now have no trust in anyone and don’t think I ever will. I hate me being that way. I have had a tough life and it never ends. I am happy to always care for and financially and emotionally support my kids but hate the feeling I got played. When we seperated she said I can only see my child if I give her all my share of family tax benefit From the start of our marriage she spent 3 days a week at her mums. I was left alone. She was never truly in this marriage from the start. I was too stupid to see what was going on. I feel so used and dumb. Now she says unless I agree to everything she want she will make it so I get even less time with my little one. Ultimately for her it’s all about get the maximum money from Centrelink and me. IMO It should be about keeping her word and the best interest of our kids. She has stated publicly that I am to quote her exactly “a great dad” so why can she threaten to keep kids from me. I been there from day one nappies nurturing the whole lot. I lived for my Bub as I felt she didn’t care for me. Ultimately I think she may have become jealous of my love for my girl. As I felt my wife never truly loved me.

Posted By: familyman2008
Date Posted: 06/March/2018 at 14:49
If she is threantning to keep kids unless you give her a bigger slice of house?
You have two choices:
1. give her what she wants but there is no guarantee that she will give you meaningful time with kids (she has lied before remember)
2. Draw down $50,000 on the house (loan) and "outgun" her legally. It may not go to court (which will reduce costs) but it will show her that you are serious. Remember she has no assets to fund her legals- you have the advantage.

If I were you- go for option 2. Get those consent orders. Scare her legally. Start by booking in a mediation session- if she doesn't turn up it looks bad for her in court (if it gets that far).
Its only a short marriage and her options for property settlement are limited and she knows it. I doubt she'd want to go to court either- the settlement she gets may be below her legal fees. Her tactic? Scare you into signing papers on her terms!
Don't let her have the upper hand. Call her bluff and lets see how far she wants to take it!

Posted By: Scott R
Date Posted: 06/March/2018 at 20:12
She said legal aid will fund her court and lawyer. I don’t have the means to pay back 50k. Latest she has said give her 5k plus car (already gave her that) and I pay all marital debt. She said do it or she will go the house. She said she will sign consent order or financially binding agreement. That will cost about another 3 k to do. If I went to court her having 2 of my kids would she get more ? So far add all up all she wants plus the agreement and I would have approximately given 22k. Do u think she would get more in court ? My legal advice says yes hers says yes apparently but I don’t believe a word she says just going on advice given to me. I also have approximately 50k super. She has nothing as never really worked at all. I contributed much more annually during the marriage

Posted By: familyman2008
Date Posted: 08/March/2018 at 15:02
Ok, maybe get her to sign the consent orders but make sure you get the access to the kids sorted out. Otherwise you will miss out on seeing your kids and child support will get expensive.
It will cost around $3 to $5k to get consent orders drawn up. Since she is kicking up a stink about it, it might be better to get her to draw them up (after all she is the one who wants your property) but I doubt legal aid will cover this unless it relates to children’s matters.
As for her saying that she is funded for court and lawyer by legal aid- it’s sounds like all bluff to me. If you haven’t gone through mediation yet then it’s unlikely that legal aid would allocate a budget to your ex. It’s not unlimited funding by any means. They tend to be selective about property cases and fund them accordingly. Chances are she has had one visit to legal aid for your ex to discuss the situation. I doubt they said this early in the peace “don’t worry we will fund you all the way to final trial so that you can get whatever property you want”. Reflex. It’s only a tactic to scare you.
Make a reasonable offer in writing. Say to her that if you want to take it to court then that’s up to you. Legal aid will make an assessment (assuming that she is funded for property proceedings) on whether it’s reasonable and if it is, then they will presssure her to accept.

Posted By: HelloNewman
Date Posted: 11/March/2018 at 13:35
Sad to read that story. Be strong - something you need to do - so as your kids will see. Kids are not stupid and pick up on things as they grow. When the court is eventually not able to grant custodianship, leave it to your kids.

Until that time, do not speak ill of their father. Sure, when he calls off access just make a little sigh and tell children that dad won't be coming, then off to 10 in bowling. I also recommend you keep a diary, writing every day. When kids are of age - they may ask about the diary and you might let them read it.

Despite the financial loss, I hope the father soon makes the upbringing of his kids a positive one, which will lead to undamaged kids.   If he doesn't, then the diary will show why.

Endure what can't be undone

Posted By: Scott R
Date Posted: 11/March/2018 at 22:37
I am the dad. Not the mum.

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