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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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My daughter owns her own house ( valued recenty at $610K- title

Customer Question

My daughter owns her own house ( valued recenty at $610K- title is in her name she paid the initial deposit to purchase the house and has paid the mortgage for six years. For four years she has had a de facto partner who has paid $150 per week for the first three years and $200 per week for the past year. She pays all costs on the house- maintenance, utilities and for most of the food purchased. She and the de facto have a two year old daughter. The de facto is an aggressive alcoholic and in recent weeks she has asked him to leave the house as she wants to sell this property and move on to a new place. He has refused to leave and states that he will not leave.
Tonight when she gave him a very clear ultimatum that he must leave telling him that she wished him to leave as she the house is to be sold he refused and became threatening so she was forced to call the police. During the conversation in which she told him she wished to end the relationship and requested that he remove his possessions from the house so it could be sold, he claimed that he had had advice to the effect that he was entitled to $35,000 and that until this was paid he would not leave.
Could you please advise as to whether this is correct? is this man entitled to a financial payout of any kind?
Submitted: 2 years ago.
Category: Australia Law
Expert:  Patrick H. replied 2 years ago.
Hello and thank you for your inquiry.Under the rules for separating defacto couples, either couple can apply to the court for orders granting an apportionment of assets, in which case the courts will apportion the relationship asset pool (the assets and super of both parties combined) on the basis they consider fair having regard to the parties relative contributions to the asset pool an any special factors, such as where one party will have the care of a child of the relationship. Based on what you have described, unless the father was likely to have primary custody of the children, it would seem unlikely he would receive a substantial proportion of the net equity and it is certainly possible, if she is to have the primary care of the children, that he will receive nothing. Despite your version of events, it is possible that he could satisfy the court that in addition to his modest financial contribution, that he did contribute in non financial ways (e.g. house maintenance, domestic chores, caring for their child, etc) and that he is therefore entitled to some proportion, and if the net equity in the property is several hundred thousand dollars his claiming an entitlement of $35,000 is not implausible, but it will very much depend on what the court makes of his contribution throughout the relationship.That said, the above reflects what he might be entitled to IF he applies to the court for property orders. If, as you say, the home is in your daughter's sole name, then until he makes such orders she is legally the property owner, and absent a contractual entitlement (such as under a lease) or a court order, he is only entitled to remain on the property if she allows him to stay. Essentially at law he is simply a guest and she is within her rights to demand he leave, and in principle, if he refused, the police should remove him from the property. In practice if the police are called to remove him they will likely be reluctant to phyiscally remove someone from their residence without a clear legal basis for doing so, and I would therefore recommend that if your daughter seeks assistance from the police in this way, that she has a copy of the property's title certificate to confirm that she alone is the registered owner of the property. Even so, it is possible that the police will decide to simply treat it as a domestic civil matter and will not actually physically remove him unless a court order is first obtained.An alternate approach is simply to change the locks and lock him out on some occasion when he leaves the premises. The onus would then shift to him to obtain a court order allowing him back into the house, but unless he can establish he has a clear entitlement (perhaps because he is the child's main carer) it will likely take him some time to achieve that end. If she adopts this approach, you should be acutely conscious that this could lead to a violent confrontation and I would not recommend your daughter confront him in this situation without other suitably supportive adults and the first sign of trouble police should be called.Keep in mind, that your daughter and her current partner have a child and will therefore likely have to deal with each other on child rearing and custody issues until the child reaches adulthood. For this reason there are good reasons to pursue a more civil compromise if at all possible, as the better they can get along, despite their separation, the easier resolving custody, access and child rearing issues will be resolved and managed going forward. So drastic action such as calling the police or ambushing her partner by changing the locks is not something that should be done lightly.I trust the above assists.Good luck and please rate my answer.Patrick