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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5357
Experience:  Dip Law LPAB - Sydney based lawyer
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Ill make this as brief as possible. My partner, is fairly

Customer Question

Ill make this as brief as possible.
My partner, is fairly recently separated from her ex husband, there are 3 kids involved, (8yo and 4yo twins)
My partner wants to proceed with the parenting plan (currently initiated by the ex husband, and in the very early stages through the Family Dispute Resolution Center), Property Settlement (not yet underway), and eventually finalising divorce proceedings (not yet separated for 1yr + 1 day).
My questions relate to the property settlement side of things..
Both of us want to get the divorce proceedings over and done with as quickly, simply, and amicably as possible. ie: avoiding court, and coming to mutually agreeable arrangements with the ex husband.
My partner is and always has been (and will continue to be) the primary carer of the kids, she ceased work during pregnancy of their first child, and has only done minor casual/part time work since, when it is suitable around her motherly duties.
A summary of the (known) joint assets is as follows:
A family home, with approximately $150k of equity
Her super (unknown value, but not significantly relevant)
His super, worth approximately $160k
Two cars (of similar value, which each party would take their respective cars, and call it even)
A boat worth approx $10k
and a caravan, worth approx $10k
Based on some cursory research on my part, and discussions with my partner, it is our intention to try and make an offer, using due procedure via the Family Dispute Resolution Center, along the following lines:
The ex husband gets to keep the entirety of his super. approx value $150K
My partner gets to keep the house, approx value $150K
The ex husband gets to keep (or sell and keep the proceeds) the boat and caravan.
Discussions with the bank with which the mortgage is under taken, based on my partners income, she will be able to service the mortgage as it stands, and if i go on the paperwork, with my income, the bank will be more than satisfied that together we can service both her mortgage, as well as mine in the short term until my property is sold after we move in together.
It is my hope, that by making an offer along these lines, that the ex husband, and his legal advice, would take such an offer, based on the fact that if he were to contest it, or possibly take it to court, it would result in greater loses to him.
My partner (and I) just want this to be done with as quickly, simply and amicably as possible, we are not interested in taking any more from the ex husband than necessary (ie in this case, he will be getting greater than 50% of the total value of the settlement).
The ex husband is currently renting, and my partner has possession of the family home.
They are currently paying 50% of the weekly mortgage repayments each..
In approximately 3 months, my partner and I would be looking to sell my house, and move in together, with me going onto the title/mortgage of her current house during. Once finances permit, we would look at buying a house together for us and the 3 kids.
My questions are.
Does this offer sound plausible? That he would be well advised to take such an offer, as he would stand to lose more if he contested it and it went to court. Is such an offer legal/feasible/viable?
Would it be advisable, or detrimental in the long run, to release the ex husband from having to pay the 50% of their joint mortgage repayments in the short term as my partner and I can afford to service this in the short term until the property settlement is finalised? As this would free up cash flow for him, and to some extent, act as an olive branch, and hopefully create a more amicable situation.
I completely understand that this conversation will not count as legal advise perse, but I am just looking for some general clarification to see if our thoughts are on the right track, so we can best prepare our position as far as the Family Dispute Resolution Center proceedings go...
Thanks in advance...
Submitted: 7 months ago.
Category: Australia Law
Expert:  Patrick H. replied 7 months ago.

Hello and thank you for your question.

Assuming what you say is a fair description of their assets, and she will have the primary care of three young children of the relationship, it appears he should definitely take such an offer.

Often in cases where one person will have the primary care of very young children and where there are only limited assets (such as where there is only two or three hundred thousand dollars available, the courts will award the vast majority of the asset pool to the party with primary care on the basis that that party will have their income earning potential greatly reduced by care obligations and the need to provide accomodation for such children going foreward.

Each case turns on its particular merits, though so only a fully briefed lawyer can give you firm advice about your partner's actual entitlement, but on the face of it, the proposed offer seems quite generous to your partner's ex.

I trust the above assists.



Customer: replied 7 months ago.
What about freeing up his cash flow by releasing him from his commitment to paying half the mortgage until the property settlement.
My intention is to suggest that in order to keep him amicable, but I want some basic insight into the legal ramifications of doing so..This would mean that his only contribution to the household would be the child support he pays voluntarily (approx $300pw), and his share in a phone joint phone bill which has all of there numbers on one account. This is short term until the phone account gets sorted out...
Expert:  Patrick H. replied 7 months ago.

Well, that would be even more generous.

My expectation based on what you have said is that your partner doesn't need to be that generous to secure an agreement, but it likely would expedite the process and perhaps would lead to a happier long term relationship with the partner's ex. The reality is that if your partner and this ex have children together they will need to deal with each other for a long time and it is usually in everyone's interest in the long run to have a good working relationship, so to the extent such a generous approach assists with that it may worth pursuing.

I trust the above assists.

Please rate my answer.