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Answered in 3 minutes by:
4/26/2011
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience: Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
VerifiedDeborah Awyzio :
As the wife is not a legal owner of the property, your Brother could ask her to leave. He could also change the locks on the property to stop her gaining access. She could make an application in the Federal Magistrates Court for sole use and occupation of the home until a property settlement is determined, but from the information provided, it would appear to be unlikely that she would be successful with such an application.
Deborah Awyzio :
In deciding how to divide the assets the courts looks at the following in a four step process:-
Deborah Awyzio :
1. Determine what the assets are and their value (as at now). This includes assets in either of the spouses names or joint names and obviously includes the house in your Brother's name.
Deborah Awyzio :
2. Determine the contributions both financial and non-financial each of the spouses has made to the assets. It appears the Wife would not be able to show that she has made any financial contribution to your brother's home, so if that is the only significant asset, the percentage attributed to contributions would be 95 to 100%. The Wife's contributions in a non-financial way such as cleaning, etc will be given some recognition.
Deborah Awyzio :
3. Determine each of the spouses future needs. This involves looking at their health, age, income earning capacity. If one is in a better position then the other, their may be some adjustment to the percentage value from step 2.
Deborah Awyzio :
4. Make a division of property which is just and equitable. As this was a short marriage and your brother brought the home in, it is likely he would retain the home.
Deborah Awyzio :
What your brother needs to consider, is that the Wife has a right to apply for spousal maintenance from him, if she is unable to meet her reasonable living expenses from her income. So if she moves out and has to pay rent for instance, she may decide to bring a spousal maintenance claim against your brother to contribute to the rent.
JACUSTOMER-mtlbpa0a- :
Thanks Deborah.
JACUSTOMER-mtlbpa0a- :
This all makes sense. Just to further clarify. 1. The wife came to the marriage with her own debts and is being chased by financiers for arrears? Is this taken into consideration? 2. Both came to the marriage with their own vehicles and furniture which are still retained by both. Both would have super but as to the amount I'm not sure 3. Both the same age and earning capacity similar. 4. Wife had pre existing health conditions - medical and mental health. I guess there would be no grounds to claim they came about as a result of the marriage breakdown. 5. If the wife now continues to remain in the house and continue to not contribute financially would there be a adjustment for this in the final settlement.
Deborah Awyzio :
It sounds pretty much like each spouse would leave with what they brought in, including their debts. Just because your brother was married to his Wife, does not make him responsible for her debts.
Deborah Awyzio :
It is unlikely that there would be an adjustment in the final settlement if the Wife remained in the home and did not financially contribute.
JACUSTOMER-mtlbpa0a- :
Thanks again. Is the value of the house based on the net equity held ie market value less amount of mortgage or is it just the market value regardless of any mortgage.
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