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Patrick H.
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Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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I divorced my husband 4 years ago and prior to the formal divorce

Resolved Question:

I divorced my husband 4 years ago and prior to the formal divorce he signed a stat dec at the police station infront of a JP to acknoweldge he owed me $15,000 and was to repay this debt. He is yet to pay and as it is in my name I have the banks chasing me for payment. Can I sue him / small claims court. I am deperate to get the debt out of my name or avoid the bank defaulting me
Many Thanks
Submitted: 7 months ago.
Category: Australia Law
Expert:  Patrick H. replied 7 months ago.
If there hasn't been a family law property settlement or court order which disposes of the debt, then yes, you can sue your husband for the amount of the debt. That doesn't alter your responsibility for the loan to the bank, however, it just means you can in principle recover what you owe to the bank from him.

So even you sue him, the court will only order him to pay you, it won't order him to pay the bank and for the bank to stop chasing you.

For that reason the fact you may be pursuing a claim against your husband is not a reason not to keep making repayments to the bank, because otherwise it can affect your credit record or lead to legal action by the bank against you.

You will need to get a lawyer involved to realistically pursue this claim against your husband, but if you have an unresolved family law settlement to also resolve, I would recommend that you let your lawyer handle both these issues.

I trust the above assists your understanding.

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Thank you and good luck.

Patrick
Customer: replied 7 months ago.

Hi Patrick - thank you for your response, I continue to chase him for the minimum repayment each month to prevent a default of credit in my name, however, he is now 2 months behind. It looks like I will have to pay the amount to ensure no defaults are lodged.


 


I just want to know if the Stat Dec will hold up in court. As this is my only formal document, others were not witnessed by others - just signed by myself and my Ex husband. I have the last two years of credit cards statements and have highlighted every payment he has made and I have text messages chasing payment etc.


 


Thanks again for your quick response.

Expert:  replied 7 months ago.
The absence of a formal written loan agreement can be problematic in proving the terms of your loan, but between the statutory declaration, your own evidence, the bank records and your texts showing that he has been repaying you periodically should be enough to satisfy the court that the loan exists and that your ex owes you the money, and in broad terms the repayment arrangements. If the court has any uncertainty as to the terms and conditions of repayment the court can generally imply terms it considers reasonable to sort out any issues, though for future reference, it is always better to have a straight forward written agreement as it reduces the scope for disputing a loan.

So in short I don't think you will have any issues proving the loan.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick

Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4454
Experience: Dip Law LPAB - Sydney based lawyer
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