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Ask Leon Your Own Question
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44637
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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My daughter, who has one child, bought a two story house in

Customer Question

My daughter, who has one child, bought a two story house in her name about 3 to 4 years ago using a personal bank loan. The house is perched on the side of a very steep hill
Her defacto partner moved in to the house together with his two children at the time. He contributed approximately $220.000 to a joint account approximately 2 years later.
In May 2012 my daughter was thrown from the back of her partner’s motorcycle and received severe injuries to her left leg. She has subsequently suffered, and had treatment for, two distinct forms of cancer that has exacerbated and will further compound her limited mobility. As of consequence of the difficulty she has in living in the two story house, and the steeply sloping grounds, my daughter has initiated repairs to the house in order to facilitate its sale with the intent to purchase a property that is flatter and more accessible.
Since the beginning of the repair process her partner, who at first remained silent, is now progressively raising assertions of his part ownership and objection to the sale of the house as he does not want to move. He is a normally taciturn person but is now raising his opposition and the prospect of legal suppression of the sale of the house.
Under the circumstances what are my daughter’s rights to sell the house?
Submitted: 2 years ago.
Category: Australia Law
Expert:  Leon replied 2 years ago.

Good Afternoon,

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Do they own in jointly or is it in her sole name?

Are they separated?

Expert:  Leon replied 2 years ago.
Good Afternoon.
I am following up my last post. Are you still in need of assistance?
Customer: replied 2 years ago.
The house is in my daughter's name. They are not separated
Expert:  Leon replied 2 years ago.

Good Evening,

She has the right to sell the house as it is in her name. If he wants to stop her he has to get a court order or place a caveat on the property to protect his interests. In both these cases she will have to go to court and get an order to be allowed to sell.

When she sells if they cannot agree to a split, then the money will be held in trust until the court makes a decision.

Is she planning to separate from him?

Customer: replied 2 years ago.
She is compelled to move due to the damage to her leg and is ambivalent as to separation. Her partner lacks empathy and appears to be thinking of his own interests.
Expert:  Leon replied 2 years ago.

Good Evening,

So the answer is that she is planning to separate from him.

She can place the property on the market but she should also consider finalising the assets of the relationship. The law applies the following steps

1. Consideration of whether a property settlement is necessary

The first important consideration for the Court is to determine whether or not it is actually necessary to proceed with a property settlement.

In the vast majority of cases, the Court will decide that it is just and equitable for there to be a property settlement or a change in the ownership of a property. However, in some cases, the Court will decide that each party should simply keep what they presently own.

This may be because:

  • the parties have decided to keep their financial affairs and arrangements totally separate throughout the relationship;
  • the relationship was of a very short duration; or
  • the parties separated many years ago and have organised their affairs on the basis of an informal agreement since that time.

2. Identify and value the assets and liabilities

This involves compiling a list of all assets and liabilities (including superannuation) that are in the individual and/or joint names of you and your former spouse/partner, and attributing a value to them.

Values can be approximate or may be determined by way of a formal valuation, as they should be as accurate as possible. The result should be a table of assets and liabilities which your solicitors will use to determine the value of the total asset pool to be divided.

It is also standard practice to establish what the asset pool was when you first started living together (which may have occurred prior to marriage) to work out any increase in asset values and to establish what each party brought into the relationship (referred to as initial contributions).

3. Assess contributions

Once an asset pool has been established, your solicitor will ask questions about each party’s contributions to the asset pool.

Contributions can be:

  • financial (such as by way of income, mortgage payments or inheritances);
  • non-financial (such as labour to undertake renovations); or
  • by way of being a homemaker and parent.

Contributions are usually calculated as a notional percentage, such as 50/50 or 60/40.

4. Assess “future needs”

Once contributions have been assessed, your solicitors (or the court) will consider what are referred to as the “future needs” of both parties. These include:

  • the age and health of the parties;
  • the earning capacity of the parties;
  • whether one party will have the care of young children;
  • the duration of the marriage or relationship; and
  • any other relevant consideration.

The assessment of future needs will impact the notional percentage reached in Step 2, so that the percentage split of the asset pool may increase or decrease in favour of one or other of the parties to take into account any relevant future needs factors.

5. Is the division of assets just and equitable?

Taking each of the previous steps into account, your solicitors, or the court, will then consider whether the final division of assets as proposed by the parties is just and equitable in all of the circumstances. This may involve assessing the practical effect of any proposed division of the asset pool.

It is form the following link

Whether she likes it or not the sooner she gets this under way the better. If she doesnt do anything he may start in court and things will be delayed.

I hope this makes sense and is of assistance?

Customer: replied 2 years ago.
Thanks Leon. You have given good advice.
Kind regards,
Expert:  Leon replied 2 years ago.

Good Evening,

All the best and good luck to your daughter.

You are very welcome and 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.