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My husband and I have recently separeted, living still on…

My husband and I...

My husband and I have recently separeted, living still on the same property, I have invested all my life savings of $130'000 from overseas (Switzerland) into the property and relationship. Unfortunately I never took actions to get on to the title of the property, and right now I have got no idear where I stand legally. How can I protect my rights to live here and what actions or legal advice can I get. I am 60 years old and don't plan to start anywhere else. Thanks you for your advice Susanna

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

We live in Myalup, Western Australia

Lawyer's Assistant: Has anything been filed or reported?

A report has been send to Centrelink as my husband is on a retirement pension

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I frankly don't know, I will provide every additional information needed

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Answered in 5 minutes by:
1/22/2018
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,568
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified

Hi, my name is***** solicitor in Melbourne. Thank you for using Just Answer, and I will answer your question today, and ask various questions to narrow the issues in your post raised.

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Susanna, the law will protect you with the separation.

how long were you living together for ?

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Customer reply replied 7 months ago
we have been living togehter for 17 years

ok

The following explains what happens with separation from a court, but it is the same when the matter is settled amicably too.

Where the court makes alteration of property interests under section 79 of the Family Law Act 1975, the court will usually take into account four facts. [1] The court will assess the extent of the property of the parties and determine its value. [2] The court will consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character, and contributions to the welfare of the family, including contributions as homemaker and parent. [3] The court will consider the circumstances which relate to the present and future needs of the parties and to their means, resources and earning capacity, actual and potential. [4] The court will consider the effects of points 1 to 3 and resolve what order is just and equitable in all the circumstances of the particular case. Alteration of property interests between separating couples is an emotional and stressful process and seeking help early is important.

would you like to have a chat on the phone ?

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Customer reply replied 7 months ago
Yor answer doesn't give me any indication what actions I can take to protect myself and not ending up homeless

this information was to help you understand the process you need to go through.

in relation to protect you from going homeless, I have extended a special offer to talk on the phone, please have a look as this will help you to get the strategies that you need to secure your future.

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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,961
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified

Good Evening

My name is ***** ***** I am a NSW Solicitor. I will do my best to assist you with your question.

As my colleague has said in a property split the law will apply the 4 steps and decide how the assets are split.

If you fear that your husband is going to sell the property you are best to get court orders to prove you have an interest and for the orders to permit you to lodge a caveat.

You can file an urgent application with the Family Court and get an order to allow the registration of a Caveat under the Act.

Once you get the order you can then lodge the caveat and he cannot sell or borrow against the property thus protecting your equitable interest that has been created by your contributions.

Here is some information about caveats and family law.

https://www.aussiedivorce.com.au/familylawinformation/lodging-a-caveat-on-matrimonial-real-property.html

You will have to show that you have made the contributions to the property and the court, once it establishes that you have an interest will make the order.

Once lodged then you would proceed to a split of all assets and the court will apply the 4 steps as it does in all property matters. These 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 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

If you have any further questions please do not hesitate to ask. If you wish a call we can arrange that as well.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. I am happy for you to ask further questions on anything you wish more detail on.

Regards

Leon

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,961
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified
Leon and 87 other Australia Law Specialists are ready to help you
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Customer reply replied 7 months ago
Sorry to get back to you only today, I got interrupted yesterday. Thank you for your answer, which was was helpful to me. I hope it will never come as far as to involve the courts. As we are having a Granny flat the living arrangements, are so far okay for both of us, and considering our ages we don't want to remarry and we don't have any children together. Is there a possibility to make a legal written agreement outside court that the property and assets are 50/50 shared? I have seen a webpage Lawdepot, which has a separtion form, would that be an option? (I have rated you 5 stars). Thank you for your advise Susanna

Good Afternoon

It is ok.

Under the family law act you can have a binding financial agreement (BFA).

With a BFA you each have to have your own solicitor and they have to provide you with independant legal advise and sign a certificate.

The full disclosure of all assets etc still has to be provided and it is all set out in the document.

From experience they cost more than Consent orders as they require more time to prepare than the Consent Orders Application and Order.

Here is some information form the Family Court that will explain it in more detail

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/property-and-finance/if-you-agree-about-property-and-money/

A BFA or Consent orders are the only options in splitting the property.

There is no formal separation document under the law. The date of separation is the date you and your husband decided that you will not longer live as husband and wife.

You do not have to go to court with either of the options. With Consent orders you file with with the court and they look at the application and the orders, and if the Registrar feels that it is fair and equitable they will make the orders.

With a BFA you each see a solicitor and get advise and the Solicitors sign a certificate confirming they saw you and that you signed freely and understood the document.

I hope this makes sense and answers the further question.

I thank you for your 5 star rating.

Regards

Leon

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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