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My partner and i have seperated and she has the house and our…

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My partner and i have...
My partner and i have seperated and she has the house and our baby girl, she enforces i have no right in anything i still pay mortgage repayments whist she is living there, she has kicked me out and says i cant get custody and wont let me in the house. I want or need legal advice, What do you suggest i do in this case, and what am i entilted too.
Submitted: 8 years ago.Category: Australia Law
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Answered in 2 hours by:
6/13/2010
Solicitor: D. Coleman, Lawyer replied 8 years ago
D. Coleman
D. Coleman, Lawyer
Category: Australia Law
Satisfied Customers: 1,105
Experience: BEc(SocSci).LLB
Verified

Dear Sir,

 

Before I answer, can I ask if you were married or defactos?

 

Kind Regards,

 

XXXXX XXXXX

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Customer reply replied 8 years ago
Sorry we are defacto.
Solicitor: D. Coleman, Lawyer replied 8 years ago

Dear fdhude,

 

A defacto settlement is normally dominated by two issues. The first is children, everything can be done be negotiation and consent between the parties but if this fails, the court can make parenting orders. The court is bound to consider the best interests of the children when making parenting orders and although there is a presumption that equal shared parental responsibility is in the best interests of the children, this can be rebutted if evidence is brought that one parent in unsuitable for parenting duties for one reason or another. The second major issue is normally property and this is again by negotiation, but in the absence of agreement, the court will make a decision on the basis of the assets of the relationship, the contribution by each of the parties, the future needs of the parties and just and equitable considerations. I have attached some more notes about this below for you to view. Let me know if you would like more information.

 

Kind Regards,

 

XXXXX XXXXX

 

 

 

 

 

NOTES ON PROPERTY SETTLEMENT:

 

The matters that the Family Court looks at in a property settlement are set out in section 79 and section 75(2) of the Family Law Act. There are three main things that the Family Court looks for when it is making a decision about a property settlement.

1. Assets and their Values
The Court must be able to find out what assets are owned by each of the parties. This includes details of the current market value of things like land, bank accounts and superannuation. It may be necessary for some assets to be valued by an expert. It does not matter when the asset came to be owned.

2. Different types of contributions
The Court needs to find out all of the contributions that have been made to the assets and to the marriage generally. The types of contributions that are important are set out in section 79(4) of the Family Law Act.

Contributions can be financial or non-financial. There are many different types. Here are some examples:

* Assets owned by each party at the time when they started to live together as husband and wife.

* Assets that are owned at the time when the parties stopped living as husband and wife.

* How these assets came to be owned and how they were cared for.

* Who earned the income that came into the marriage.

* Who cared for the residence in which the parties, and any of their children lived.

* Who cared for any children living with the parties.

* Who cooked, cleaned, washed and performed the many and varied household tasks for the parties and children.

* Gifts and inheritances.

It is important to understand that contributions as a homemaker and a parent are seen as very important contributions. In most cases where the marriage has been a long one, they are seen as equal to financial contributions.

3. Future financial position
The Court looks at what the future holds financially for each of the parties. These matters are set out in section 75(2) of the Family Law Act.

Some examples are:

* The age and state of health of each party.

* How much income each party is able to earn.

* Whether each party is looking after a child of the parties and whether either party wishes to continue caring for the child full-time.

* Any child support that is being paid.

* The need for each party to have a reasonable standard of living.

The Court gives the party whose financial future is not as good as the other, some extra part of the property owned by the parties.

4. Just and Equitable Considerations - The court may adjust the orders in any way that it deems to be just and equitable in the circumstances.

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