16 Comments Family & de facto law, financial agreements, consent orders
Only a court order can compel you to place the property on the market... A court will always give the one party first option if they wish to buy out the others interest.
Even if for some reason a property was sold on the open market, the proceeds would need to be held in trust either by the real estate agent who sold it, or a solicitor, pending a signed & sealed court order setting out how the proceeds & other assets are to be divided..
Key point for you is. do you know the value of your property NOW?... That is, the actual value placed on it by a professional property valuer, not a RE agent?... If not, get one done, & again in 12 months if still not settled.... Property values are actually falling in some capital cities.... All offers should reflect the current market..
Other point is do you have Superannuation that you can throw into the mix if you fall short on a purchase price for her agreed share... A super splitting order can form part of a consent order..
Thirdly, if she is still being erratic & or stubborn, & when you know the actual value of all assets, talk to your solicitor about or research how to make a calderbank offer... That is a written offer 'without prejudice save as to costs'.
As long as your offer is reasonable, taking into account all the circumstances of your case, & you give her a reasonable amount of time to consider the offer, if she still rejects it, you have the option of using that offer to seek court costs , IF, it were to go to court & a judge considers her share is less than your offer...
The point of the calderbank offer is to place pressure on the other party to seriously consider the offer made or risk a costs application against them if the court decides a lesser amount..
Thanks for the replies, I am calm, all good.
She already accessed half of her Super but all my Super is still in the approved super account and she wants to get it obviously. I have been advised that the Super is normally equalised. Do you mean, she can access my Super and get it as usable cash in the bank?
I thought her share of my Super went into her Super account.
Good question how she accessed her super... If she really has remember that her fund is just as much a joint financial resource that needs to be considered in settlement as much as your fund..
As emca01 above, normally you only get it at retirement age, even super that is the subject of a splitting order.... There are other conditions of release >>> Conditions of release that can be considered under special circumstances, perhaps she used one of those?
In any case, a splitting order for xxxx amount is a legitimate part of property settlements even though it's not for immediate access, & is often a way to get to an agreement if you fall short of funds to 'pay out' the other parties share in a settlement... if the value of your fund is big enough, it may help, but you'll need to send off the appropriate forms to your fund to get it properly valued..
She accessed her Super under special circumstances of financial difficulty.
She is in financial difficulty because she is a speadthrift. I had to look after all the finances during the relationship. These days, she is always at the local shopping centre and I am sure she squanders away any money she gets from Cerntrelink, FTB, etc.
Won;'t this apply to the money in the accounts as well? I mean looking at the money in the accounts at the time of separation?
We have been separated for over 2 years and I have spent a heap of money over that period. Some of that money was given to her during separation. I've spent Thousands and thousands on legal fees, living expenses, school fees, maintenance, clothes, etc. If we go back to looking at the money in the accounts at the time of separation, almost all of it has been spent and if the court asks me to pay it back, I will have a bit of a problem.
At first I froze everything waiting for a settlement date and saved hard to prepare to buy her out but when my layer told me the financial statement must declare current savings even though we were separated for a long time and I saved a sum of money AFTER she left, I saw little need to conserve the money in that case.
It's assets & financial resources at the time of settlement...
Each party pays their own legal fees unless ordered otherwise.... So if either of you have used a large portion of what can be established to be joint funds accumulated prior to separation, then that amount should be considered an 'add back', ie, money that you have already received from whatever the agreed or ordered division finishes up being.
Each of your day to day living costs since separation should not be considered an add back..
Super is handled differently then other assets or a bank account... For the purposes of a property division It's value can be calculated differently according to the type of fund it is along with other factors,... The starting point is to send off a super information request form to the fund..
Any money that you have saved since separation that is the result of your own labour, is not included in the 'pool' for division, but still must be declared as all assets must be at the time of settlement... Reason being the court wants to know each parties actual financial position at that time.... As long as you can demonstrate that the savings are as described, you are safe to save... Don't recommend putting extra into your super fund, because that is subject to division..
If you win a lottery, the winnings won't form part of the pool, but would be considered a financial resource that you have but the other does not, & may therefore change the division of assets within the pool..
Hope all that makes sense
It would only be your assets that would need to be declared at time of settlement not a de factos... UNLESS, you have joint assets or bank accounts etc, then they would need to be..
In that scenario, the de facto could apply to become a party to the settlement if they think there's a need to.... Best to just keep things separate as possible until you sort out the first mess...
Also, keep in mind that if you are in a de facto (particularly if that person moves into your property) AND you were to live as de facto for at least 2 years, & or have a child, THEN separate, you may be fighting 2 property settlement cases over the same assets.... Very messy... Don't want that..
Thank you Jaazz, that wont happen, I would not get married again or take the risk of co-habitating with a woman following this experience where I lived my entire life to get married and have a family, I worked hard, supported my wife regardless of her flaws, I put all my efforts into raising a happy family and from no fault of my own and the reason being that my ex wife was bored and depressed and wanted to see other men, it has resulted in:
1/ Stress and trauma for our children
2/ Councelling because the kids didn't want to live
3/ Manipulation and posturing of the children by the ex
4/ Regular Police involvement following false allegations of Family Violence
5/ Receiving intervention orders without being aware or present in court
6/ Domestic Violence advocates giving full support to my ex without any interaction with me at all (her allegations were false! How can they provide a Government Subsidised service which is effectively an advocasy against men's rights? Where are the Men's Rights advocates to combat this?)
7/ Having to fight in court for the rights to regularly see my children.
8/ Losing a huge portion of my income as a result of caring for my children on a regular basis.
9/ Thankfully, beating the Police in court against Family Violence Charges
I now see on the Safe Steps website that a Man RESTRAINING a woman's hands is now an act of Family Violence. This effectly means Men are not entitled to self defence. All men are at risk and I won't put myself in that situation again.
Master Dong while I accept what you say, you need to realise that in any marriage breakdown there are factors from both parties that contribute to that breakdown. It is very rare for a wife or an ex wife to allege domestic violence without some basis.
Your post above is the typical response of an ex husband who still fails to accept any blame for that breakdown.
Now I accept that I may have this completely wrong in your case, but be aware that others will judge you along the lines I have stated till you start to acknowledge where you went wrong, no matter how small that wrong was.
Could I suggest you seek some help if you find yourself unable to accept your part in the breakdown, because if you don't the chances are that you will repeat this in any subsequent relationship. Which could find you back in the same situation, but with a history to confirm peoples and perhaps the courts suspicions.
There are horror stories that can be attributed to both genders when it comes to breakups...
But getting back on topic.... If you want to keep the house I can tell you that harboring the need to get 'justice' or fighting on principles in the family law system is a recipe for just more grief, disappointment & a lot of your money in other peoples pockets quite possibly resulting in you not being able to keep the house
Joe makes a valid point in seeking assistance.. I always recommend that people, particularly men, seek a good solid support network & counselor to help them deal with the inevitable feelings that come with breakups... How to deal with the anger, grief etc so that it dosen't get out of hand & cause more problems...
Thank you for the replies. Jaazzz, you are 100% right on that one and believe me, days have been spent in negotiation but when everything is going in the wifes favour, we have no option but to look to the courts for a fair settlement.
To Citizen Joe, you don't know my situation in person, but you seem to be a White Knight who is constantly defending women and you fail to reailse that Men's rights have fallen to a low level where men are considered sub human in the eyes of the law.
Check out this website https://www.safesteps.org.au/ It instructs consumers that Women and Children are the victims and the perpetrators of family violence are Men. How do you think the less educated in the community respond to this mis-information? It creates a state of victimhood amongst women and children and that is destructive to men and to families. I don't accept blame for being a father to all my children, for being a respectful and supportive husband to my ex Wife and most importantly, I don't accept blame for being a man.
Getting of topic, but my opinion on all that for what it's worth...
As a bloke, I can see how females feel when a bloke gets angry, particularly to the point of rage.... Putting yourself in that position I'm sure you also would feel afraid for your safety... Educating men (and starting at a young age) of this imbalance in power & how their actions, rightly or wrongly, may be perceived as threatening is a good thing & needs to happen.
That said, there are a number of 'movements' that pop up from time to time that do nothing but set this back & alienate a large proportion of the population... Cause division, animosity & contempt.... Just as it's wrong for those groups to lump gender & or age demographic into one basket, it's equally as wrong to think that their comments are that of all those they proclaim to represent, or even close to a majority or common thought..
These groups are predominantly if not entirely based in & driven by social media...Unfortunately larger mainstream media organisations keen to cash in on the latest stoush & always looking for a nice bit of click-bait, sometimes perpetuate it & distort the conversation further... It's a sign of the times unfortunately..
Getting involved in these social media stoushes, even with a balanced point of view is usually just a hiding to nowhere...If you were to make any kind of what may even smell like a sexist comment, you'll be jumped on quicker than a frog on a log & you'll be targeted..Bullying, intimidating behavior?... Absolutely... But that's social media all over... Don't get involved in it, it's pointless, don't even read it.
As I said, I believe that something does need to be done, & the best way of doing that is through education, & for both sexes to accept that their will always be people that will act abominably regardless, & that there are places a woman needs to be wary of, & times of night that pose a greater risk... I think that needs to be part of the education as well... Even as a bloke I would avoid these..
As for the webpage you mention, I haven't had a look as yet, but if there is material on there that you are concerned about, report it to the appropriate body, whether that be a body dealing with discrimination, & or your state or federal MP... Just put your argument in a concise, meaningful manner in as few a words as possible, & citing the sections that you believe are causing a misrepresentation...
If enough people complain.. in a PROPER manner & with a valid argument, that's how things can get changed...
Anyhow, just my two bobs worth..