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I entered a defacto relationship with a person who was bankrupt…

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I entered a defacto relationship...

I entered a defacto relationship with a person who was bankrupt whilst I owned/was paying off my townhouse. I sold this and I bought a house under my name and we jointly paid interst only. During the course of 3 years we worked to cleared his name of bankrupty. I then fell pregnant and was not working. We had two children. We moved and got a joint mortgage on a house which we again paid only the interest on.
Three years later after problems involving many issues of abuse (psychologist intervention involved) we separated and he suggested an 80/20 split in finances in my and the childrens favour. However he then kept the car, didn't help pay the mortgage and didn't see the children, leaving me to pay the mortgage, feed myself and the children, sell the house, buy a car and a new smaller house and start a new job.
Two and a half years later he is now verbally contesting the financial spilt saying he was co-erced by me.
What I would like to know is if a financial spilt of 76/24 in my favour is fair? I can earn about $120,000 pa now that I am back in the workforce. He earns $100,000. He is withholding child support which is now in the hands of CSA, however I am considering not pursuing child support if our financial agreement was not fair??

Submitted: 12 years ago.Category: Australia Law

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Answered in 56 minutes by:

2/17/2011

Solicitor: Leon, Solicitor replied 12 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,733

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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Good Evening.

When did you separate?

Customer reply replied 12 years ago

May, 2008.

Solicitor: Leon, Solicitor replied 12 years ago

Good Morning,

Did you do the split with court orders or just between yourselves?

Customer reply replied 12 years ago

We did the split with a Form11 lodged at the Family Court.
There was a paragraph that they were not happy with, stating that and extra $20,000 was added to the split to cover two yrs child support-in that way my ex could sort his mental health without worrying about mnthly child support costs, and needed CSA's consent. I got that consent and sent it to the court. They are now saying that due to the lapse in time from initial lodgement of the Form 11, they need my exe's signature.
The reason I ask whether the split sounded reasonable was that if it did not I was considering dropping the application for child support. He has become. Very aggressive and it is affecting our children. Our psychologist says he should not be allowed to bully and get out of paying $ for the children as this will not help his recovery, however if our split was too favourable to me I would rather cancel receiving any CSA $ from him.
Judging from the lack of abuse I can'e imagine he has received the letter requesting his signature. I don't think he is the type to get lawyers involved, but I am fine if he does-I'm not after is $, just what is fair.

Solicitor: Leon, Solicitor replied 12 years ago

Good Morning,

If he wishes to do anything he has to go back to court and seek an order that the original settlement must be set aside

The reasons that the court will set aside orders are set out in the following link

http://www.austlii.edu.au/au/legis/wa/consol_act/fca1997153/s205zh.html

He can do what he likes but you have orders and unless they are set aside by the court then he can do nothing.

I hope this is of assistance and if so please click on the accept button.

Customer reply replied 12 years ago

But, generally, in your opinion, are most financial splits between couples 50 50%, when the mother then takes on parental responsibility, and there are two children involved. Or is it mostly 60 40, or 70 30? Generally?

Solicitor: Leon, Solicitor replied 12 years ago

Good Afternoon,

It all depends on the situation

If there are no children and it is a long relationship that is greater than 7 years then usually 50/50.

If there are children then the party that has custody of the children have a greater share.

The law applies a 4 step process in property splits. The same is applied for married and defacto couples.

The steps are

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 Wife 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

You would look at how to divide the assets to achieve the percentage division arrived at after the first three steps. Such as is the house sold, or retained by one spouse who pays the other out, does there need to be a superannuation splitting order, etc

It is not possible to provide you with a percentage range of expected property settlement without a proper consideration of all the factors in each of the four steps set out. I recommend that you make an appointment with an accredited family law specialist for a one to two hour consultation as they will then be able to provide you with initial advice of the percentage split to expect.

The actual percentages are determined on a case by case basis.

I hope this is of assistance and is so please click on the accept button.

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,733

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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