26 Comments Family & de facto law, financial agreements, consent orders
No you have started the process, but why are you waiting for her to agree, whack it all before the court and get your share so you can get on with your life. If your proposal is reasonable it should just get stamped.
A reasonable settlement proposal for one in your situation with a 15 year relationship and no kids, would be 50% of everything to each of you.
Make sure everything is included. House money, cars, furniture, savings, investments and superannuation.
Thank you MartinO for the fast response and advice.....much appreciated!
Like all matters of this nature it is complicated......my offer was just as you said. We had split all things and agreed so it was only the house and of course I did not agree with the superannuation......she had not worked for 8 years as a personal choice and although less, she did have her own superannuation.
Now we have been separated for more than 2 years, I was under advice that she was no longer able to claim on my Superannuation and the family courts would no longer hear the case. I had been waiting for more than a month and half for her solicitor to respond to my last offer......a little more than 50 percent of the house value to her. I am now living abroad so court was not my choice but rather a fair resolution was my way forward.
I have no way to contact her and (I don't know if this is the case) if something has happened with her, what happens to the money in trust....do I need to take this to the courts and if so does the money from my home pass onto some other family member of hers to resolve it with?
I would have thought that there would be a reasonable time to make claim and if her solicitor had not heard from her to advise on my offer they would have to notify me as I asked for a response within 14 days (as they have done with me throughout the process)
Woah Woah Woah..... did I understand your situation correctly jocarul? You have money in trust that you are trying to chase your ex to give to her some of it? Let's see you have two options:
1. Spend time and money to track her down and if you can, negotiate to give her some of the money, and if you can't, risk asking the court if you can get their leave to sue her (out of time) and then sue her to give her some money
2. Take the money
Mate, ask your lawyer to give the money that was held in trust back to you. It is yours. There is practically 0 chance of success and extremely high risk and cost to her trying to make a claim on it. She is out of time (> 2 years) and has next to no chance of getting any more money from you without you doing it out of the goodness of your heart.
Spend it on some fancy champagne.
Thank you Jaazzz and thank you freeman!
I was under the impression that the money held in trust had to be resolved by both parties before I could take it out. Please tell me if this is not the case as I will buy Bolinger!!
At the risk of appearing to justify myself (clearly I am) after 15 years of hard work I also had to increase my mortgage by 100k over 10 years to facilitate her not working and having her travel overseas for self education.........I also had to sell the property at her demand for $100k less than it was worth so in my true opinion.....she got her monies worth.
I was not clear of what the trust account was so what is the process to get the money out now that the time limit of 2 years is over?
Again.....many thanks for your replies and advise.
Ok, I am possibly getting out of my depth so gurus feel free to step in and correct the layman.
What does the trust deed say in terms of who the nominated beneficiaries are and how and when the funds may be distributed? Your lawyer should be able to tell you if he/she is legally permitted to return the money to you now.
You could possibly argue that there has been an effective resolution of matrimonial property matters given that you are beyond the time limit. To protect yourself even more you could send her lawyer a letter indicating your intent to retain the funds due to the effective resolution of matrimonial property matters and provide them a reasonable time period in which to reply. I don't know whether this would be more courtesy or buy you any legal protection. It'll certainly make you look good if there is any litigation (for whatever that's worth).
Your lawyer should be advising you on this. If they are not, work out if they are just trying to squeeze more fees from you by offering to "help" you try and track your ex down.
[QUOTE=freeman] ... What does the trust deed say in terms of who the nominated beneficiaries are and how and when the funds may be distributed? Your lawyer should be able to tell you if he/she is legally permitted to return the money to you now.[/QUOTE]
My thoughts exactly. You need to find this out first. I'm assuming since you admit that you are unsure of what the trust account was, that it was set up with some input from each sides solicitors. In that case I doubt that it can be released without some sort of settlement or court order.
Be aware that even though your two years have passed, leave of court to apply can still be sought by her at any point if you have significant joint assets & she is able to prove hardship may result if leave to apply is denied.
Many thanks to you Freeman and Jaazzz for your time and great advice. There are no assets to worry about and all other items have been agreed.....so it is just the house monies left.
I will call my solicitor and find out exact details of the Trust account and post details back here for the sake of the blog as it may assist others with a similar problem.
My kind regards and appreciation
Hey jocarul, I think Section 44 might actually work in your favour. On top of hardship (e.g. she will die in a ditch if she doesn't get more money from you) the court also considers what the excuse is for being out of time.
If you don't need a court order to get at that trust money, doesn't sounds like she will die in a ditch or have a valid excuse.
However, if you need a court order to release those funds, I suspect you have a strong case to get leave to apply for an order. And in that case, you could probably settle through negotiation anyway if the other side is aware of this.
Let us know how you get along.
Hi Freeman! Many thanks for the advice again, sorry for the late response but I was hoping to post an answer here but still no answer from my solicitor after 5 days.........I feel I need a solicitor to talk with my solicitor? Well, I will come back as soon as I have answers. Much appreciate your advice Freeman.....and this site. I am learning a lot reading the forums!
FInally a reply from my solicitor with the first email stating that they could not release my funds without agreement from both parties.....after asking for the details of the trust account the answer is they are not allowed to release my funds as it is a matter of ethics? This means that it is not a question of legality........I don't wish to compromise ethics so I ask is there a legal way to retain my funds from the trust and remove the obligation of compromising the ethics of my solicitor. I would have thought that ethics be to fight for the rights and the best interest of the client.......the last additional reply from my solicitor was to ask if the house was in my name. I replied....Yes it was only ever in my name as I owned it before the relationship, so I assume this makes a difference now......
It appears then that it's held in trust under both names. If that's the case, then as informed, it can only be released with the agreement of both. It goes beyond just ethics, it's set out in the legal professions act.
If you are not able to contact the other party, then you can either file an application in a case to have a certain amount released & employ somebody who can locate & serve her with papers. If her solicitor is still acting for her they may be able to accept service on her behalf if she directs them to.
Alternatively you could seek substituted service, either to a family member or her solicitor. If all reasonable attempts to locate her fail, then the application may be considered in her absence & a determination made. Under those circumstances I think you would be given a court order that would allow the release of funds.
[QUOTE=jocarul] after asking for the details of the trust account the answer is they are not allowed to release my funds as it is a matter of ethics? [/QUOTE]
Ethics? Hah, that's rich. In my opinion it was unethical to lock it into a trust in the first place.
Mate - you have my moral support to push for your best interests as much as possible. Ask for a copy of the deed and read it and try to interpret it. They should have to give it to you.
I have to concede though I am way out of my depth with respect to the legalities.
Empower yourself. Get that deed. Understand what your legal options are.
Yes Freeman.....my thoughts on "ethics". When this settlement began we were in a mutual agreement (then) so I got a local family law firm to do the paperwork on a 50/50 split, the concept of the "trust" (as explained to me) was to keep a paper trail so there was no dispute through accounting and auditing........only after I initiated this law firms services was I served with papers from her solicitor.....this was a premeditated act of deceit with no "ethics", so I am sadly disappointed to find that I am locked into a "trust" bound by ethics, from a firm I pay to protect and advise me.
Now that she is "out of time" (2 years) after my last proposal of 50/50......now unanswered after 3 months! To me she has abandoned this case and I no longer wish to spend more of my hard earned money chasing her to give her money from the sale of my own home? Surely I can just cease the process here, not wishing to finalise and ask that my funds be placed in my account as I will settle with her if she bothers to chase me...........if this illegal or unreasonable, I think "ethics" is an abused word and not to be used in law.
Thank you again Freeman...........FYI, I have asked for a copy of the deed but rather wants to explain by phone.
Thank you Fatho2.......this is my feeling as well, but I cannot get a concise answer to this question. I respect (as a director of a company) all companies are in the business of making money......so I know my question is not in the best financial interest of the firm that has my case. I feel they are not giving me a direct answer........which is why I question the term "ethics". The more I get indirect answers to bullet point questions the more I feel an alternative motive to keep the case active.
Thank you Fatho2 for your thoughts!
Whew! What a sad convoluted story. Lawyers please take note = this kind of conduct is just plain wrong imho. I wish you well in the satisfactory resolution of this matter so that you can get on with your life and enjoy at least what remains of the fruits of your labour. Good luck - you've come to right place here at this forum and much good advice has been given. Cheers
Yes Freeman, that is what I feel too.....thank you mate! Haha, sorry for the sad story......it wasn't my intention to create a novel..........thank you for the kind thoughts and words iconoclast! You are correct, I have had much great information from this forum so I now have a better understanding and sense of the law.......giving me the tools to ask the right questions.......not to mention a great support, which I am very grateful for.
I understand that I cannot get a direct answer to the question of my funds held in trust being released, so I am drafting an email requesting the finalisation of my case and services with my solicitor.....so we will see what happens? I will post the results here for the record and use for others in a similar situation in this forum.
Many thanks again to you all for your help and support!
Have a look at this post.
If they don't comply to your satisfcation you could contact (or pressure them by suggesting you will contact) the Commission.
freeman 2012-11-24 17:59:26
Ain't this forum just great for all us sometimes lost and lonely bloggers??? What I love is the honest opinions offered - the kind and caring advice and emotional support - even if it's not such fab "legal" comment. I hope you and all others similarly affected do get the resolution you/we do all so wish for. cheers from icono
iconoclast 2012-11-25 02:20:16
Too true icono! I have to say I am impressed with this forum and the members that have become e-friends! I am enjoying the process of learning something I had no interest in as it was too deep for me to swim in the waters of legalities. Now I am dog paddling my way through the information and enjoying the process.......I will never be a solicitor but I am certainly beginning to make some sense of the law. Instead of wasting time complaining about being a victim.....I am learning to handle myself with the common sense I am gaining here.
Best wishes to you icono.......and all the members of this forum giving their time to help others in problems.