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Patrick H.
Patrick H., Lawyer
Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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During a property settlement, where the wife used her personal

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During a property settlement, where the wife used her personal money to buy the property in 2000 and the husband did not contribute to the purchase of the property, but then worked on the property, what grounds can the wife use to ensure that her initial investment is returned to her. The husband wants a 55/45 split going the wifes way. The total value of the property is minimal around $250,000. The wife has offered a 70/30 split her way as she put up the money, and has maintained the property financially as well as physically.
At law the property of a separating couple (which includes all property in either parties name and superannuation) is divided as a whole based on what the court considers fair having regard to:

1. the financial AND non financial contributions of each party throughout the relationship; and

2. having regard to any special factors which would warrant an adjustment in favour of one party or the other. Typically these include considerations such as where one party will have the care of children of the relationship, or where one party has health issues which will impair their ability to support themselves.

So in your case it is important to understand that the court works out the total pool of assets and works out what share of the total each party is entitled to and only then decides which particular assets each party gets. The court does not separately decide what share of each asset a party gets, but rather only allocates each asset after determining each parties overall entitlement.

However, if it were the case that the wife had effectively contributed the whole financial cost of the asset pool and there were no special factors, then she likely would receive the vast bulk of the asset pool. The husband would however be entitled to some share, because a court would almost certainly accept that he must have made some non financial contributions in terms of maintenance and/or renovation work in the usual course of the marriage and so should be entitled to some share. Whilst this could be challenged with evidence, courts usually accept some share is warranted.

Only a fully briefed lawyer with a detailed knowledge of both the family history and all the current assets of both parties (including superannuation) could give a firm opinion of the parties entitlements, however, based only on the information provided, and the assumptions that the house is the only asset of substance; that there has been a long standing marriage going back to around 2000, with no special factors, I would guestimate the wife would be entitled to something between 60 and 80%. Naturally if there are other assets of substance which the husband has contributed to the pool of assets then different percentage would be warranted.

Although you appear to be attempting to negotiate an informal settlement, be aware that under the Family Law Act informal settlements are not legally binding so if you settle this way you run the risk that the agreement may be set aside later and a court imposed settlement be substituted.

I trust the above assists.

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Customer: replied 3 years ago.

thanks again Patrick


will leave a tip at the end lol. your answering all my questions.

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