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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42668
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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3 year relationship (not married ) has just ended as an de

Customer Question

Hi. My Name is Ryan
My 3 year relationship (not married ) has just ended as an de facto. Now the house that i own is in my name i make all the mortgage payments. She has contributed to utility bills and other household items. Now she is claiming that she wants to be reimbursed for the things she paid for. Which is fair enough but she also wants to claim utilities that she paid. Now she has lived here rent and mortgage free. She also wants a lump sum payment of 50k. Now i understand that being in defaco relationship parties are entitled to things etc. My question is that she has well paid job with the government and has savings close to 900k would that mean im entitled to some of that. Or is it just property that is divided if so what can i claim against her in that regards ***** ***** or mortgage if even possible.
Greatly appreciated
Submitted: 1 year ago.
Category: Australia Law
Customer: replied 1 year ago.
Please check email to be sent to***@******.*** as i made a mistake before but have changed.Thanks
Expert:  Leon replied 1 year ago.

Good Morning,

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

It is a short relationship and the law will mainly consider what she has contributed.

The steps that will be applied are as follows:

1. Consideration of whether a property settlement is necessary

The first important consideration for the Court is to determine whether or not it is actually necessary to proceed with a property settlement.

In the vast majority of cases, the Court will decide that it is just and equitable for there to be a property settlement or a change in the ownership of a property. However, in some cases, the Court will decide that each party should simply keep what they presently own.

This may be because:

  • the parties have decided to keep their financial affairs and arrangements totally separate throughout the relationship;
  • the relationship was of a very short duration; or
  • the parties separated many years ago and have organised their affairs on the basis of an informal agreement since that time.

2. Identify and value the assets and liabilities

This involves compiling a list of all assets and liabilities (including superannuation) that are in the individual and/or joint names of you and your former spouse/partner, and attributing a value to them.

Values can be approximate or may be determined by way of a formal valuation, as they should be as accurate as possible. The result should be a table of assets and liabilities which your solicitors will use to determine the value of the total asset pool to be divided.

It is also standard practice to establish what the asset pool was when you first started living together (which may have occurred prior to marriage) to work out any increase in asset values and to establish what each party brought into the relationship (referred to as initial contributions).

3. Assess contributions

Once an asset pool has been established, your solicitor will ask questions about each party’s contributions to the asset pool.

Contributions can be:

  • financial (such as by way of income, mortgage payments or inheritances);
  • non-financial (such as labour to undertake renovations); or
  • by way of being a homemaker and parent.

Contributions are usually calculated as a notional percentage, such as 50/50 or 60/40.

4. Assess “future needs”

Once contributions have been assessed, your solicitors (or the court) will consider what are referred to as the “future needs” of both parties. These include:

  • the age and health of the parties;
  • the earning capacity of the parties;
  • whether one party will have the care of young children;
  • the duration of the marriage or relationship; and
  • any other relevant consideration.

The assessment of future needs will impact the notional percentage reached in Step 2, so that the percentage split of the asset pool may increase or decrease in favour of one or other of the parties to take into account any relevant future needs factors.

5. Is the division of assets just and equitable?

Taking each of the previous steps into account, your solicitors, or the court, will then consider whether the final division of assets as proposed by the parties is just and equitable in all of the circumstances. This may involve assessing the practical effect of any proposed division of the asset pool.

It is form the following link

http://www.landers.com.au/publications/family-and-relationship-law/property-and-financial-settlements-following-separation-or-divorce/

Married couples and defactos are treated the same, except she has no entitlement to your superannuation as the WA law does not allow access.

In all of this you both have to consider the costs of going to court.

If the matter is o go to a full hearing the costs of $80,000.00 is not uncommon.

The law will not just split your home. It will include her $900,000.00 in the total asset pool and split that as well.

It is a split of all assets not just your home.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 1 year ago.
Hi LeonThank you for the quick reply. Will the reason for the separation be taken into account when assets etc are being worked out. Eg if partner was unfaithful and general falling out?
Expert:  Leon replied 1 year ago.

Good Morning

Unfortunately the system is a no fault system. It does not look at who did what and does not look at blame.

It looks at the assets that you each own individually and together at the time of the application.

The it looks at contributions made by each of you. ie. What you each bought in and what you have put in since you started the relationship.

In your case this is what it will concern itself with as it is a very short relationship

I hope this makes sense?

Customer: replied 1 year ago.
Thanks Leon. That helps. Sorry just a few more queries.
Now you mentioned that being a short relationship. We have been together for 3 years but only living together for just 2. Now my working position is that i have been doing since together is fly in fly out work on 2&1 basis. Now i did forget to mentioned that i do have investment property that i bought at end of last year which is in my name and she has made no contributions towards. I earn roughly 150k as casual employee. The current house that we both live all in my name and mortage payments all from me in which i bought back in 2009 is worth around 400k. All are which are mortages not owned. I have only 20k savings myself. Minus about 10k which she is asking for in compensation for things bought for the house. With her savings of 120k and inheritance of 700k. From your previous personal dealings with such cases can you give a very rough estimate as to what we both be entitled from one another.Thanks very much.
Expert:  Leon replied 1 year ago.

Good Morning,

It is very hard to give you an estimate and would be negligent of me.

All I can tell you is if you or her try and ask for more than you have each contributed and bought into the relationship the court is going to have to be convinced.

It will not just hand it over.
Your value is the total less the debts. This is all you can distribute.

Her value is calculated the same. So if she has more there is no way she will get anything more than what she contributed, if the court is to look at future needs. But in this case it looks like she is very much better off.

Customer: replied 1 year ago.
Thanks.
By she is better of because of her financial position?
Customer: replied 1 year ago.
Sorry
What i mean is by saying she is better off cause of her financial position?Thanks
Expert:  Leon replied 1 year ago.

If she has no debts and just finds her net position is better than yours, I am only guessing.

Debts are not apportioned if the court makes a decision.

The debts remain the persons who took them out only their net position is apportioned.

Customer: replied 1 year ago.
if the depts are still with me is she entitled to portion of the actual deed or percentage of what the house is worth and that i would have to refinance to pay her out a certain amount. Apologies if you have answered this alreadythanks
Customer: replied 1 year ago.
Sorry debts
Expert:  Leon replied 1 year ago.

Good Morning

no she would only get the difference between the mortgage and the value of the house, that is if the court found she was entitled

so if the house is worth $400K and the mortgage is $300K then the amount available to share is 100 and that is what she can make a claim on

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