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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4518
Experience:  Dip Law LPAB - Sydney based lawyer
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My brother is in the process of getting a divorce he is the

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My brother is in the process of getting a divorce he is the lower income earner out of the 2.
His x wife has nearly 80000 in accrued annual leave and long service leave, she has work all this time instead of holidaying with family. He doesn't want access to this money. But can he build it in a case that she needs to include this money as her personal assets.
She had an affair and left, the home and is still seeing her boss. My brother just wants it fair and finished. She wants to finish him off and take everything . Leaving him homeless.
My brother also wants to know if there has ever been a case where the accursed leave has been add into the assets.
Submitted: 10 months ago.
Category: Australia Law
Expert:  Patrick H. replied 10 months ago.
How long were they married?

Are there any other assets of either or both parties beside's her accrued leave entitlements - such as a house, car, superannuation or other investments?

If there are children how old are they and who is likely to want primary custody of them?

He predominantly cared for the children as they have been growing up?

Customer: replied 10 months ago.
She has a car valued at 15000
A tax benefit from a failed business my brother ran of 8 -10000
Her super 103050
Leave 40000
And my brother is prepared to go to bank for 70000 to buy her share of house.

The house is valued at 310000
He has a boat at 7000
Sporting guns 10800
His tax benefit for failed business 1800
His super 57000

He is still servicing a debit for business on his own for 39000, this is how he would like to devide it up .
It brings his share a little above her percentage after he also pay her 70000.
But he needs tha leave include to be able to get the loan from bank, to pay her out on the house.
There are 2 child that they are sharing 1 week on 1 week off. He has always taken them to school and picked them up or it was my parents if he could not, so she could work. My parents have looked after them also if my brother could not. So that she could work.
She also pay him currently about 750 a month child support as she earn 3 times his wage. Which she hates doing. He also service the home loan himself and the debit for the business on his own at moment without her.
Customer: replied 10 months ago.
Also married for 20 years
Customer: replied 10 months ago.
She was also back at work full time after both child with in a month of having them leaving the with my parents most of the time to look after .
Expert:  replied 10 months ago.
Under the Family Law Act the parties are each entitled to a fair share of the total asset pool (which includes all assets owned by either or both parties and including superannuation and even accumulated leave entitlements), having regard to:

1. The financial and non financial contributions of each party both initially and throughout the relationship.

2. Taking into account special factors such as where one party will have the primary care of the children.

On the face of it, therefore, it would appear that the wife has made most of the financial contributions, which will be a significant factor in her favour, however, in longer marriages such as a 20 year marriage the courts tend to lean toward a more even split because almost usually the party who has the higher paying and more demanding job generally makes somewhat less non-financial contributions such as transporting the kids to school and domestic work so to some extent non financial factors over time tend to offset uneven financial contributions.

Also if care of the children is going to be even or in your brother's favour the court will likely make a further adjustment in your brother's favour to accomodate the additional costs of his accomodating children.

Because making a firm assessment of his entitlements requires a detailed knowledge of the family history and the financial and non financial contributions throughout only a fully briefed lawyer can give you firm advice as to the actual likely apportionment, but based only on what you have described, and assuming that the initial contributions were even, and that custody remains even, I would guestimate your brother would recieve something in the order of 35 to 50% of the total asset pool. However, because the total asset pool appears quite modest, if one or the other party is going to have primary care of the children then a very significant adjustment could be made in the custodial parties favour.

Although you say your brother cannot afford a lawyer, it is clear to me that the asset pool whilst not large, is of sufficient size to justify engaging a lawyer, especially if it appears the wife is being unreasonable.

If your brother cannot afford a lawyer simply because he does not have access to any of the family assets, he likely can find a family lawyer willing to defer payment of fees until after a settlement or judgment resolves the matter.

If he needs assistance looking for an appropriate lawyer he should contact the Law Institute of Victoria as they can refer him to a suitable lawyer in his area:

www.liv.asn.au

Given the size of the asset pool, I expect that unless the parties are simply unreasonable, that a settlement should be achievable, in which case the may be no need to go to court, but negotiations would be greatly assisted if your brother were assisted by a fully briefed family lawyer.

I trust the above assists.

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Thank you and good luck.

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4518
Experience: Dip Law LPAB - Sydney based lawyer
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