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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44644
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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How are you? really not sure how this works but need advice.

Customer Question

Hi how are you? really not sure how this works but need advice . was just talking to someone and they disappeared once I paid ? I meet my new partner over 12 months ago . He is married but separated. I am self employed and have assets but not a house.
I have 3 little girls to support. My new partner has 3 children to his marriage and has a partnership in a company, also has a house in which his wife still resides. They are currently going through a financial settlement in relation to assets and finances
and I am concerned that my income or assets can be affected or affect his case in which the ex wife can claim if we are living together Can you help me understand what the law is in these matters thankyou
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year 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.

Your assets cannot be included as they are yours.

But in the future they may be as you will become a defacto couple and if you wish to protect them you have to enter into a Binding Financial Agreement with him.

But his current property split has nothing to do with your assets as he does not own anything that is yours.

I hope this makes sense?

Customer: replied 1 year ago.
what if we have been living together for the past 6 months ?
Expert:  Leon replied 1 year ago.

You have to be together for 2 years before he can make a claim.

But his ex cannot do anything with your assets because they are yours and he has nothing to do with them.

If he was an owner of any of your assets then you have a problem. But if everything is in your name she cannot make a claim.

Customer: replied 1 year ago.
Okay thankyou for answering that . As he is going through this settlement can she claim spousal maintence from him and if so will living together affect the amount he may have to pay or would he have to pay at all. At this stage my partners solicitor cannot get any answers from is ex partners solicitor as the ex partner has not and will not disclose what she wants in settlement . His accountant has provided valuations on company share and has provided all documents required . Although his ex partner is providing nothing and not communicating. They have a court appointment tomorrow in which a court mediator will be present and if no agreement has been reached my partner was advised costs in the facinity of 20,000 each is what he is looking at. He currently pays the full mortgage for the property she is in which they are both on the mortgage and she pays nothing. He is paying tax for himself and some for his ex and paying all credit cards from the marriage which were in his name as she never worked till after the split. Do you have any suggestions as to what he can do to get his ex to come forward with the info and what she is wanting so to get a settlement. I can see that she is trying to prolong this as long as possible to keep my partner paying for the house in full. avoiding a conclusion. Also what is the chance that if not settled in agreement tomorrow that once in court before a judge he could have to sell his share of the company .
Expert:  Leon replied 1 year ago.

Good Afternoon

Yes she can but it is from his income not yours.

Have they filed an application?

Customer: replied 1 year ago.
not that we know of as she is not responding to any questions?
Expert:  Leon replied 1 year ago.

If she has not done anything then they are negotiating and nothing is set in stone.

If she starts proceedings then she has to disclose everything and if she does not your partner can issue subpoenas.

Customer: replied 1 year ago.
she has started proceedings they have been to court a number of time regarding the kids etc but she will not respond to solicitors questions in relation the assets and financials.
Expert:  Leon replied 1 year ago.

Good Afternoon

But there is not application for property?

Customer: replied 1 year ago.
they are in court tomorrow regarding property . can I contact you shortly again as I am taking my little on the kinder . He has received a court document and I need to find out further what is happening . thankyou
Expert:  Leon replied 1 year ago.

That is fine

Talk soon

Customer: replied 1 year ago.
Hi Leon,
my partner has a wage from the company . Payslip has wages then an amount gross. Then has income tax taken and also child support to another child . He then receives a directors fee of 950 a week which is not taxed on his payslip . This amount he pays for work vehicle payments and expenses , tools which are need on a day to day basis for servicing gas appliances and installations and any other work related expenses not paid by the company. Then he claims his expenses at the end of financial year on that money. Can you tell me what part of his income is taken into account under child support and that he should be declaring as wages?
Expert:  Leon replied 1 year ago.

Good Afternoon

That is too hard because the Child Support agency has its own formula. But you can used the estimator and ti will tell you.

You enter all the details and it calculates it for you.

There are many things that are written back if he is a director of a company.

Customer: replied 1 year ago.
What do you mean written back and in the calculator what would the 950 be entered as because just adding that figure would not take into account the expenses
Customer: replied 1 year ago.
Can he offer his whole super and share of the property and assets as payout for what she is entitle to with the business
Customer: replied 1 year ago.
also does house contents , horses etc as they have 8 horses , her car , caravan , etc have a value to him in determining what his share of that would be worth? as he is claiming that she can have all of it
Customer: replied 1 year ago.
from an outside standing point his solicitor has not been giving him any of this information and he is flying blind
Expert:  Leon replied 1 year ago.

Good Afternoon

they do not allow them as deductions

example depreciation is not allowed it is written back and it is deemed income.

Only income is used to work out child support.

Customer: replied 1 year ago.
the directors fee would not be income as it not part of his taxable income on his pay slip ?
Customer: replied 1 year ago.
Can you provide him with legal advice as a solicitor and help him have an better understanding of what he can do to keep his share in the company and so the business is not affected. Are you able to do this over the phone once he comes home from work . that way tomorrow he may have options to settle this without going before the judge witch he was quoted enormous fees
Expert:  Leon replied 1 year ago.

Good Afternoon

It would be income but any deductions he has being a director would possibly be reinstated and treated as income.

Customer: replied 1 year ago.
when he pays for say tools he pays it from the 950 he gets as directors fee and keeps the receipt to claim against the 950 the company does not reinbuse the expenses back to his account . It was before the split going into a business family trust in which he had to pay gst on moneys in the trust for that amount . but now it goes in his personal account and is used for tools of trade and car allowance etc. I think that it would be really good if you could explain in a phone conversation with him and I.
Customer: replied 1 year ago.
I am just really not happy that he is paying thousands to his solicitor who ois not advising him legally on any of it
Expert:  Leon replied 1 year ago.

Solicitors do not deal with Child Support.

This is outside the court process it is dealt with by Centrelink

Most time it is accountants that fight them because it all works around income and expenses.

The link I gave you is very detailed in what it asks. This is the best way to know what he has to pay.

If she is going to try and get spousal maintenance as part of the property settlement then she has to file in court.

I can tell you family law is the most expensive because of the time required to get Affidavits drafted

Customer: replied 1 year ago.
I think we need to get advise on the business and property settlement and what his best options are to offer her to get her to sign off the business to him
Expert:  Leon replied 1 year ago.

The law when dealign with property applies the following 4 steps

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 Husband 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

This is what the court will look at.

There is no clear formula as such.

Customer: replied 1 year ago.
Wife wants him to give her property contents and all other assets
wife wants him to pay the house repayments in full until paid for completely
wife wants him to pay child support payments as wellhusband want his work vehicle and clothes
husband wants business as it is the income source for survival
husband wants to pay child support and her put the house in her name and pay for it or sell and she can keep money and all other assets and his super for the businesswhat would be the legal resolve do you think ?
Expert:  Leon replied 1 year ago.

Good Afternoon

It does not sound fair but I cannot comment more than that

She may want the world but will not get it.

Customer: replied 1 year ago.
look I could imagine you would be thinking it all sounds crazy . I tell you it is driving me nuts. last could hearing they tried to negotiate xmas holidays . first day she agreed to nothing and proposed my partner see his kids 3 hours over xmas day then not till the 20th of January and maybe a weekend in between . second day no resolve and was to go before the judge and she left just before saying she had issues and went home and it had to be adjourned then third day back again and judge ruled visitation but she is fighting easter and next xmas still pending decision . We are fully expecting her to walk out again tomorrow and then it will have to go further and a lot more money involved . my partner and his business partners are up in the air with the business concern . do you have any information on the different options he may have to offer her as the payout of the business and release him from the house with option
Customer: replied 1 year ago.
basically he just wants his lively hood and to be released from the house and marriage
Customer: replied 1 year ago.
he loves his children and would never let them go without. does he have the right to go for shared custody 7 days on 7 days off as a friend of mine has this set up with her ex husband they swap every sunday . would he have any chance of getting that awarded by the judge
Expert:  Leon replied 1 year ago.

We are jumping around

Now you are asking about children.

It is a horrible jurisdiction and because the courts have been short staffed matters take for ages to finalise.

Your partner has to decide what he wants and stand his ground.

This applies to both the children and the property

If he wants to keep the business and give her the house then this is what he has to put to her.

Be aware that the split takes into account all assets including superannuation.

If there are children under 18 and she is to have residency then she would be looking at more than 50% of the total pool.

What happens is everything is worked out at a dollar value and then split.

He has the right for equal time with them.

As I said is it not simple and it is for this reason that these matters cost so much.

If they cannot agree and have gone through the conciliation conference it should be set for a hearing and let the court decide.

Expert:  Leon replied 1 year ago.

Good Morning

Just following up my last post.

If there is nothing further

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.