4 Comments Family & de facto law, financial agreements, consent orders
[QUOTE=FedUpWithEx] ... I'm looking for advice on the best way to move things along in the most cost effective and easiest way (if there is there such a thing?).
Can I force a sale of the jointly owned house? If so how can I do this?
Do I need to engage a lawyer to do this or can I file orders with the court to force a sale myself? What are my options?[/QUOTE]
You can file an Initiating Application Kit (Do it yourself kit) with the federal magistrates court. In it you include the orders that you want. What division of assets you want etc. There will be a filing fee of approx $250. A community legal centre may be able to help you with the paperwork.
You will need to file an affidavit along with it setting out the facts you are relying on. In your case, you want to include the steps you have taken to engage your ex in discussions & mediation to have property matters sorted out. Make it clear that you are only filing orders as you have been left with no other option.
He will have to be served with the application & your affidavit & given the opportunity to respond. He can either agree with what you are seeking or propose his own along with his own affidavit stating the facts he is relying on.
Should it go to court, the first order likely to be made is that you both attend dispute resolution & make a genuine attempt at settling the matters in dispute. The point of the exercise is that it will get him to the table & he will start to be held accountable for his actions.
In the meantime, since he has sole use of the property, mortgage may be considered as fair rent for that sole use.
1)How long have you had the mortgage
2)How much is it a month
3)How much rent could you reasonably charge for the place per month
4)How old are your kids
5)approx what do you both earn PA
Thank you so much!! That is exactly what I needed to know re forcing a sale. It might just be what I need to get him to table like you say.
I regard to the fair rent. Answers below...
1)How long have you had the mortgage - since Sept 2005
2)How much is it a month - Around $2000 per month
3)How much rent could you reasonably charge for the place per month - around $550-$600 per week
4)How old are your kids - kids aged 8 and 9
5)approx what do you both earn PA - He earns $80K pa, I earn $40K pa
On those figures you could argue that the mortgage is fair rent for the sole use of the asset. In that case if it were me, I would be ceasing any further payments towards the mortgage. Call & tell the bank that you have been attempting a property settlement to no avail & that you are going to initiate a settlement with the court. In the meantime he will be responsible for the full cost of the mortgage. He's the one living there, it will be him they chase. He earns enough to cover it.
Are you receiving child support? Even though you have 50/50 care, the wage disparity means he may be liable for some payment to you.
Also have you got a formal parenting plan? How long have you had 50/50 care?
Thanks again. Not receiving child support as such. Ex paying private school fees and health insurance for kids in lieu of child support. there is a slight shortfall from what CSA said he should pay but I have not asked him for it. When we first separated he threatened that if I claim child support he would stop paying school fees and would drop his work to part time. It was probably just an idle threat on his part but I as I didn't want the kids moved from their school and I couldn't afford school fees on my own so I agreed with the arrangement.
We mediated for care arrangements for the kids. I wanted them with me for 8-10 days per f/n(mostly school week to give them stability) as I had always been primary carer and I thought best they be primarily in one home during school week. He pushed for 50/50 and we couldn't agree to any other arrangement so were issued a certificate for court. Rather than take to court i agreed to 50/50 arrangement to save animosity, anxiety and legal fees. The kids are in a routine now but I have never been 100% happy with the arrangement. He works full time as a shift worker and relies heavily on his aging mother (73 yrs) to look after kids. The kids tell me they are not happy with this arrangement either. The alternative is to go to court I guess, but again at what emotional and financial cost? No formal parenting plan is in place.