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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43958
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I have a question: My partner and I have separated. not

Customer Question

Hi. I have a question: My partner and I have separated. not married but living under the same roof for 8 months (we dated by long distance for about 12 months prior to moving in). The residence was a house I bought with a loan in my name only. My partner terminated the relationship and I moved out of a home that the title was in my name. my partner is still in the house with her two teenage children. The children are not mine. I have 5 yr old who I have visitation with every fortnight. My partner gave $70,000 towards a deposit and while we were together received a rather large inheritance ($500,000). She has put a pool into the property being around $80,000. I agreed to the pool as a gift to the family that we would all enjoy. She terminated the relationship and asked me to leave - I am a police officer and she hinted that if I didn't leave then our relationship would deteriorate badly - I took as a sort of threat. Where do I stand financially - I wish to sell the house that I own, return her 70k from the deposit and discharge the loan and split any profit equally. Any advice would be great
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: New South Wales
JA: Has anything been filed or reported?
Customer: what do you mean?
JA: What confuses you?
Customer: what you refer to as filed or reported?
JA: Anything else you want the lawyer to know before I connect you?
Customer: There is no domestic violence. although one of her children is quite violent
Submitted: 4 months ago.
Category: Australia Law
Expert:  Leon replied 4 months ago.

My name is ***** ***** I am a NSW Solicitor. I will do my best to assist you with your question.

Customer: replied 4 months ago.
Hi Leon. Jonathan is my name
Expert:  Leon replied 4 months ago.

I would be hard pressed to say you were in a defacto relationship as you have not been together for 2 years and the total period if we included the long distance dating is only 16 months.

I would be suggesting that you give her a lease agreement and also have a deed where you owe her the cost of the pool.

How long has she been living in the house and is she paying rent?

Customer: replied 4 months ago.
We moved in together in 1 January 2016 and I moved out 28 august 2016. She has been in there since. She is paying the mortgage payments. So agree to pay her the cost of the pool - what about the $70k deposit? Do I agree to pay the pool cost and deposit back? She is not working at the moment but is looking to go back and wanted me to sign over the house to her and go our separate ways. I need to protect my interests though. She couldn't get the loan herself which is why it is in my name only
Expert:  Leon replied 4 months ago.

I am concerned that she is paying the mortgage.

She has no entitlement to the house only what she has paid being the cost of the pool.

You purchased it yourself and put in how much?

Customer: replied 4 months ago.
I put in 30k from equity in an investment property I own. She offered to pay the mortgage- however it goes into a chequeing account not directly off the loan itself. . So the money she put into the deposit means nothing? What about any other improvements she has made to the property without my written consent? Does her paying the mortgage change things? I had to move and could not afford the rent on new house and the mortgage. She lead me to believe there would be a reconciliation but it became clear that was a con by late Dec.
Expert:  Leon replied 4 months ago.

It is messy to say the least.

If she wants the house I would neb suggesting she pay you what you have put into the property and then you transfer it to her.

But she has to be able to take out a mortgage in her name. If she cant it is even worse you will not be released.

Customer: replied 4 months ago.
Where do I stand if she can't get a loan? Just to confirm that I would only have to pay for the pool not the deposit? I had drafted a letter that stated my intention to sell it and if she wanted to purchase it she could at the market rate. I would pay her back the deposit (or pool) and we'd split any profit 50/50. I also said that we don't meet the threshold for de facto but if she wanted to have the family court decide then so be it. But if she did that and it was determined to be defacto then I would be entitled to her assets as well?
Expert:  Leon replied 4 months ago.

Good Morning.

If you were to keep the house you would have to pay her what she has spent on the property.

If she was to get the house she would pay you what you have paid.

If she cannot get a loan then the alternative is that you give her what she has spent to improve the property and if she wants to remain she pays you rent.

You are right you do not meet the threshold and the courts would not entertain an application.

Expert:  Leon replied 4 months ago.

Does this make sense?

Customer: replied 4 months ago.
if I was to keep the house, how do I get her out? I have a tenancy agreement ready to go but if refuses to sign what happens then. What legal right do I have to have her removed? I don't think she is serious about going back to work (qualified teacher), and her ability to get a loan without a guarantor. I could potentially still be in this position in 12 months time waiting for her to get a loan. Is there any grounds I could go her money? We are not defacto so I have no entitlement to her money then she should not have access to my house? So I say I am keeping the house and I'll pay you what you've put into the house but you move out or you pay me money and I'll sign over the house to you
Expert:  Leon replied 4 months ago.

You are going to have to take her to court to get her evicted.

You are going to have to be more direct and may even have to get a solicitor to send her a letter with the offers and make it clear of the outcome depending on what she does.

This will not work on your own and without the intervention of the courts.

If she is saying you are a defacto couple then you will apply the following but it is a short relationship and the law will mainly look at contributions you have both made

Step 1: Determine what the assets are and their value

This will include all assets and their value as at the day that you are dividing them. It does not matter whose name the assets are in, they will form part of the matrimonial pool. Superannuation entitlements are also included.

Step 2: Determine what contributions you and your Husband made towards the assets.

This includes a consideration of both financial and non-financial contributions. Consideration is given to what assets each of you brought into the marriage as well. The weight given to your initial contribution will be dependent upon the length of your relationship. The longer the relationship the less weight given to the initial contribution.

Step 3: What are each of your future needs.

Consideration is given to your respective ages, your comparitive income earning capacity as well as other factors.

IF these things don't balance equally for each spouse, then an adjustment is made in the percentages.

Step 4: Make an order that is just and equitable between both spouses

But you are not defacto

Customer: replied 4 months ago.
Ok. Would it be reasonable to send her a letter saying
We are not a defacto relationship
I want to sell the house at market price
Pay you the cost of the pool
Split the profit between us 50/50
You may buy the house from me if you can get a loan (your problem not mine)
Or
If you can get the loan I will sign it over to you
You will pay me X amount of dollars
If you don't or can't get a loan then the above option happens.If you choose to have this determined by a court (unlikely we will be determined defacto) they will consider all of the assets of both of us and debt and etc.I want to be fair but this entire thing has been manifestly unequal to me and my daughter. And the more it goes on the more I think she only put the pool in so she could have a claim etc
Expert:  Leon replied 4 months ago.

Yes that works too.

You need to get this moving and everything in writing and make sure it is marked "Without Prejudice" SO she cannot use it against you.

I hope it goes well and 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