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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38613
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Further to my previous questions and your answers, dated 22nd

Resolved Question:

Further to my previous questions and your answers, dated 22nd May 2013, to what percentage and why is the estranged wife entitled to a payout for herself when:

She came on a visitor’s visa from Europe, met the person (future husband) within a fortnight, moved into his mortgage/debtfree house, fell pregnant, got married and later the Australian Residency. The marriage incl. facto relation ship lastet 4 years and 3 months until she moved out of the house. Altogether 3 children were born, the last one was conceived and born after separation. She had no financial input and a third party (me) helped to support both of them.

I was informed she will receive a payout because of non financial contribution. These non financial contributions can’t they be counter claimed because of providing her with a free roof over her head and living essentials?

Why is she entitled for a payout for herself just because of the kids? He pays maintenance for his 3 kids. They stay with him 3 nights a week and whenever he is not at work. No agreements whatsoever had been made so far. He wants the kids, she wants money, the supporting 3rd party doesn’t agree to take out a mortgage on the house in order to pay her and he hasn’t got any money to pay her.

If she is entitled for a payout for herself because of the kids, are there any measures to ensure the money benefits his children?

The house is owned by his family (me) to 75% and him 25% as Tenants in Common. Am I correct to believe that no other outsider/third party can force the sale of a mortgage free house?

Adverse possession! How can adverse possession of the house be avoided?

Thank you for your advice
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good afternoon

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

I completely understand your frustration.

The reason she is entitled is because while she is looking after the children she cannot work and she has need.

The money she received for the children is for the maintenance and support not hers.

In family law it is not a situation where you counter claim.

The court will accept all contributions made by the parties when it makes its decision.

If they did not have children who entitlements would only be based on what she contributed which would be very little. It is the children that make the difference.

In relation to the house can you tell me the ex-husband of this woman who is making the claim what she does he own?

Customer: replied 1 year ago.

Thank you for your answer.


 


They are not divorced yet, only separated for 6 years. From the time of separation she received white goods, furniture, money for a car etc. of roughly $ 15,000.00. If she is entitled to a payout because of the kids for the kids, what measures are in place to ensure that money benefits the kids and not her habits? He also pays monthly child support and does more for his kids than required. She gets Centre Link payments as well.


 


As stated, the house is in the name of the mother of the husband to 75% and him with a 25% share as Tenants in Common and lives there. Can a third party/outsider force the sale of a mortgage free house held as Tenant in Common? If she, the estranged wife, forces her way into the house to live there, how can this - classified as Adverse Possession - be avoided?


Thank you very much

Expert:  Leon replied 1 year ago.
Good Afternoon,

Because they have been separated for 6 years what has been accumulated any increases over this time would be foreign teams are not given to her.

Child support is for the benefit of the children and has nothing to do with the property settlement

The property split is for her and she can do with it that she wishes.

If she is with somebody else how she receiving Centre link payments?

so you are saying the husband owns 25% of the property?

Is strange wife would only be entitled to a share of that 25% and nothing of the mothers.

She cannot force a way into the house because she has no rights to do so.

Adverse possession does not apply any situation because she would have 2 have possession of the property for at least 20 years to the exclusion of the owners and to show that she has maintained a properly paid all bills etc.

Adverse possession is something that cannot be used by her in the situation at all.

You should currently with a new partner living with them?

Is she seeking a share of the property and why hasn't the husband filed for divorce?
Customer: replied 1 year ago.

Hi there, again,



Thanks for clarifying re: property split. So, it has nothing to do with her getting more because of the kids. Support of the kids and property split are two different subjects. She wants a payout for herself but has made no financial contribution to property etc. - property was mortgage free provided by his family -. So, she really shouldn't get any property payout as property was/still is, debt free, not improved and actually run down.



I didn't say she is with somebody, as far as I know she is on Centre Link. They have determined the amount of child support he is paying.



She wants half what is in his name. She hasn't put the divorce in because in order not to loose her claim she has to disclose what she wants. He hasn't put the divorce in because he wants his kids as often as possible and as long she thinks she gets what she wants, he can have them. Also they both want to avoid court proceedings and keep the emotional stress from the kids.



Thank you again for your advice

Expert:  Leon replied 1 year ago.
Good Afternoon,

She does not receive more because of the children now.

It is her ability to work because she is looking after the children that will be considered.

If you remember, in the initial question I provide you with the 4 steps of the court follows. It is step 3 of those that determines how much she receives because of her financial need.

Just to remind you the 4 steps are as follows:

Step 1: Determine what the assets are and their value

This will include all assets and their value as at the day that you are dividing them. It does not matter whose name the assets are in, they will form part of the matrimonial pool. Superannuation entitlements are also included.

Step 2: Determine what contributions you and your spouse made towards the assets.

This includes a consideration of both financial and non-financial contributions. Consideration is given to what assets each of you brought into the marriage as well. The weight given to your initial contribution will be dependent upon the length of your relationship. The longer the relationship the less weight given to the initial contribution.

Step 3: What are each of your future needs.

Consideration is given to your respective ages, your comparitive income earning capacity as well as other factors.

If these things don't balance equally for each spouse, then an adjustment is made in the percentages.

Step 4: Make an order that is just and equitable between both spouses

If the property is in debt then the difference between husband's share in the amount of he equity and that is what will be split.

So if for example the 25% share is worth $100,000 and there is a $90,000 loan over that share then there is only $10,000 available to be split between the husband and wife. She will only receive a share of their $10,000.

My apology was my misunderstanding with the way the question was written in mention marriage and also the fact I assumed she was in the defector relationship after the marriage.

She is not entitled to 50% of what is in his name. It is a short marriage, it has been 6 years since they separated and her contributions are minor.

The only saving grace she has for her is that while they were together and she was raising the children she had a role to play in the short marriage as homemaker (non-financial contributions) and the court will give her credit for this.

The husband needs to get more detailed legal advice from a solicitor the practices in family law to get this matter finalised and you should also be filing for divorce. Once the divorces granted the time starts to run and she has 12 months to file any application in court for a property settlement.

After 12 months from the divorce, if she has done nothing, it is too late and she is out of time and it will cost him more money to seek a court order that she can file out of time.

Is there anything else I can assist you with?


Customer: replied 1 year ago.

Thank you for your excellent service. That's it for today. Might need you again in the future.

Expert:  Leon replied 1 year ago.
Good Afternoon,

I am happy to have been of assistance and I look forward to hearing from you in the future she require anything further.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38613
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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