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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5361
Experience:  Dip Law LPAB - Sydney based lawyer
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My ex and I are going through seperation and I owned a home

Customer Question

Hi my ex and I are going through seperation and I owned a home before we got together... when we seperated the house was sold. My ex was NOT on the deeds for the house but was on the morgage as we refinanced which has been paid out from the sale of the property..
The conveyancing solicitor is holding the proffit in her trust as the ex wants the full amout of the sale money. She has ALL the assets from our 7 years together including all my work tools preventing me from working to my full capacity, she also has a 2012 Holden Captiva which I am still attatched to, she is also selling assets on ebay and has put a DVO on me and is making it difficult for me to see our children. What are my rights and what is she entitled to???
Submitted: 1 year ago.
Category: Australia Law
Customer: replied 1 year ago.
Also... we have been seperated for 2 years in November 2015 if that makes any difference? ?
Expert:  Patrick H. replied 1 year ago.

Hello and thank you for your question.

Unless court orders have been made in relation to the property settlement, if you are the only person on the property title, then once the mortgage is discharged, you should be legally entitled to the money and it is not apparent from what you are saying as to why the conveyancing solicitor is withholding the profit from you. The same applies to items like tools and the car (especially if it is registered in your name) which are reasonably identifiable as yours. I would strongly urge you to engage a family lawyer ASAP to pursue urgent recovery action and to review your family situation in more detail.

That said, whilst it would appear you are both now out of time to pursue property orders since you've been separated for two years, in practice the courts will often allow late applications of this sort, and if you or she ultimately pursue a property settlement under the family law, she may ultimately have some claim to some of these assets, but that will depend on a variety of factors which only a fully briefed lawyer can advise. All I can say is that under the Family Law Act, parties are normally entitled to a 'fair share' having regard to their contributions to the final asset pool (the asset pool being all assets held by each party, so noting you owned a home going into the relationship and she did not, that is a factor very much in your favour.

However, courts will make considerable adjustment in favour of the party to a realtionship who is going to have primary care responsibilities for any children of that relationship, but how much of an adjustment depends on many factors, not the least of which is how large the available asset pool is.

In relation to access to your children, the courts generally treat financial issues as separate considerations to custody issues, so even if she thinks you aren't paying enough child support or that you owe her money, that is not a satisfactory reason for her to be withholding custody, and her behaviour in this regard may well be frowned upon by the court. In terms of what custody/access you may be entitled to, the courts operate on a rebuttable presumption that it is in the interests of children that they maintain or develop strong relationships with both their parents and this presumption will only be rebutted where there are very serious issues such as drub abuse, violence, sexual abuse or similar which convince the court the children are better off away from the father. Such issues aside, courts will, subject to practical realities, such as work obligations and issues of distance where a parent lives far away, generally make orders allowing as much custody and access as is practical balanced against the similar competing claims of the other parent. In practice, especially with young children, practicalities will mean the main breadwinner ends up with less custody or access, than the parent who has most of the parental responsibilities, but often this just reflects the respective roles of the parties prior to separation. Before courts will generally intervene in custody disputes, the parties are required to attempt mediation which can be done through an organisation such as Relationships Australia:

http://www.relationships.org.au/

Though if you have had significant custody and she suddenly has cut you off completely, it may be possible to seek an interim order from the Family Court so that you can reinstate the previous arrangements whilst a final decision is mediated and/or ultimately determined by the court.

I trust the above assists.

Good luck and please rate my answer.

Patrick

Customer: replied 1 year ago.
Conveyancing solicitor is holding the funds as the ex put a coveate on the house... and it lapsed but the solicitor would not release the funds until we camr to an agreement. ... so from what I am told from that conveyancing solicitor. .. there is a non signed verbal agrement between myself the ex and the conveyancing (as I can have no contact with the ex due to DVO) solicitor that she will hold the money till an agreement is meet.... dispite everything i have told you.
How can I get this solicitor to release the funds to me.... ??
Expert:  Patrick H. replied 1 year ago.

By 'conveyancing' lawyer do you mean a lawyer who acted for both of you and then recieved the funds from the sale?

Patrick

Customer: replied 1 year ago.
The ex would not sign a discharge authority unless i aggreed to have all profit put into her accoun.. As i did not agree the other option was that the conveyancing solicotor hold the profit money from the sale till an agreement was met. This was all done via email between the conveyancing solicitor and the ex due to my non contact with her.
Customer: replied 1 year ago.
the conveyancing solicitor was acting on behalf of me with the real estate who sold the property as my ex was not on the title. So she was/is supposed to be working on my behalf.
Expert:  Patrick H. replied 1 year ago.

As it appears you agreed to the solicitor holding the funds until an agreement was struck the only two ways to get your money, or some part of it out, are for you to reach an agreement or get a court order that the funds now be released. If you can't reach a satisfactory agreement then this is yet another reason for you to get a lawyer. Although only your custody/access issue is a family law issue, the other issues have a strong potential to become family law issues, and for that reason I suggest you find yourself a family lawyer who feels comfortable dealing with these other matters. If you need help finding a suitable lawyer, contact the Queensland Law Society as they can refer you to a suitable lawyer in your area.

Good luck and please rate my answer.

Patrick.

Customer: replied 1 year ago.
What kind of court order do i need and what will happen??
Customer: replied 1 year ago.
what are my chances of winning this seemingly ridiculous battle??
Expert:  Patrick H. replied 1 year ago.

You need to have your situation assessed wholistically. IF you just concentrate on the property, you may win a case to have the funds released to you, but then trigger her responding by bringing a late family law application for property orders, which could then effectively reverse the previous outcome. That is why I am suggesting you need to see a family lawyer who can look at the bigger picture than just the property proceeds being stuck in a trust account.

Your chances of winning depend how you define winning, but if you accept that winning is being better off than stuck in your current situation, I think your chances are very good, but if you unable to negotiate reasonable outcomes with your ex, legal action or at least the credible threat of legal action is likely to be the only way you will resolve this.

Please rate my answer.

Patrick

Customer: replied 1 year ago.
I have tried offering splitting the money 50/50 she said no i offered 70/30 she said no... i have offered the above only as she has ALL the assets, including car, household goods, all my work tools... and she has declined everytime.
So i guess im trying to weigh up whats tje best option for me.... I/ we had an arrangement and i was having the children every 2nd weekend and then she de ided to not allow me access to them and put a DVO on me... i was not even in the state when she did so...
I just want this settled and be able to see my children and have enough funds to financially set myself up again. Thats all i want.
Expert:  Patrick H. replied 1 year ago.

From what you are saying she seems to be taking advantage of your efforts to avoid litigation. It seems crystal clear to me that you need to get a lawyer to help you deal with her.

In fact if you show her you are serious this time she may suddenly get more reasonable.

Please rate my answer and consider a bonus for my efforts.

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