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Just wondering if an ex partner is still responsible for…

Hi there, Just wondering...

Hi there, Just wondering if an ex partner is still responsible for paying the amount of monies agreed upon in the consent order if they filed for bankruptcy after the fact?

Lawyer's Assistant: What steps have they taken? Have they filed any papers in family court?

We agreed upon an amount in a consent order and yes they have been filed and stamped by court

Lawyer's Assistant: Family law varies by state. What state are they in?

Queensland

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

Is there anymore information they would need?

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Answered in 5 minutes by:
3/20/2018
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,239
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified

Hi, I am Leon, a NSW Solicitor. I am reviewing your question and will reply again in a moment.

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Customer reply replied 1 month ago
ok

Good Afternoon

Have they included that amount in their bankruptcy?

If the order has been made pre-bankruptcy then it has to be paid and if the trustee in bankruptcy wants to stop it being paid and change the orders the trustee has to seek to change the order under section 79A of the Family Law Act.

Here is a link that is very detailed followed by the part that you would need to look at further

http://briferrier.com.au/news/bankruptcy-and-family-law-alteration-of-property-interests-between-bankrupt-and-non-bankrupt-spouse

Alteration of property interests by means of consent-based orders obtained under section 79 FLA before bankruptcy arises

Under section 79(1)(a), FLA a husband and wife may obtain property settlement orders from the Family Court on a consent basis made before bankruptcy arises. In these circumstances when the Family Court makes an order by consent any alteration of the interests of the parties takes effect by reason of the court order and not by reason of the consent of the parties.

With respect to such pre-bankruptcy, consent-based court orders the bankruptcy trustee on appointment has the right to challenge the order under section 79A. Such challenge will, however, be confined to the grounds allowed by the section (as discussed above). Again such an appeal would usually be based on the ground that the order was obtained without full disclosure of relevant information, such as the imminent bankruptcy of one of the parties to the marriage.

Note that with respect to dispositions of property under pre-bankruptcy, consent-based orders the trustee will not be in a position to invoke sections of the Bankruptcy Act, such as sections 120 and 121, which are usually employed by trustees in bankruptcy to challenge pre-bankruptcy dispositions of property between spouses. The reason for this restraint is that a transfer of property by a person pursuant to a court order, including a consent-based court order, is not a transfer of property under either section 120 or 121 which only apply to a transfer by a person (who later becomes a bankrupt) outside the operation of a court order: see Official Trustee in Bankruptcy v Mateo (2003) FCAFC 26, 28/2/2003.

Finally, consent-based court orders will not be an option available to the parties to the marriage in cases where bankruptcy has already arisen. In those circumstances the bankrupt’s interest in property will have vested in the trustee (other than exempt property), thereby depriving the parties of any opportunity to alter vested property interests on a consent basis: see Debrossard & Official Trustee in Bankruptcy (2011) FamCA 648, 19/8/2011. The only option available to the non-bankrupt spouse will be to apply for a post-bankruptcy property settlement order under section 79(1)(b) FLA as discussed above.

It is not a simple yes or no answer.

If you wish to have a phone call to discuss this in more detail please elect a call or I can send you a request.

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. You rating my work 5 stars allows me to continue to provide a service to those who require it.

I am happy for you to ask further questions on anything you wish more detail on.

Let me know if I have answered your question today.

Regards

Leon

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Customer reply replied 1 month ago
Hi there, It was done pre-bankruptcy. I didn't know that it needed to be included in the bankruptcy dealings. He is still in bankruptcy until next November 2019. We he be liable to pay it still now or in the future?

Good Evening

The order has to be complied with unless the trustee tries to overturn it and makes an application under 79A of the family law act.

He is liable to pay the order is an order. When he pays it depends on what you are prepared to do. If you are happy to wait then he can pay later. If you want to enforce it you have to go back to the court. In that case the Trustee has to fight it.

I hope this makes sense and is of assistance.

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Customer reply replied 1 month ago
The company when into liquidation on the 24th of June 2014 (He is the only owner/director of the company). He filed for bankruptcy in November 2016. I will add the consent order for you to look at.

Good Evening

Do not upload it, it will become public.

Email it to me and I will look at it.

The email address is

***@******.***

Mark it to my attention. I will get back to you when I get it, It may take 24 hours.

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Customer reply replied 1 month ago
How do I made it legal that I will wait until he gets out of bankruptcy? Just thinking if I don't make it legal that I expect that he still has to pay and a lot of time has passed that they will say its gone on for too long and wipe his debt???
Customer reply replied 1 month ago
Oh no, I already did. How can I change that???
Customer reply replied 1 month ago
What do you mean by public???
Who will see it???

If the orders have been sealed by the court they are legal.

You can enforce it by going back to the court.

It has not appeared online.

Anyone that stumbles across the link will see it.

If the consent orders have not been filed with the court and sealed then you have no orders.

Wait till the bankruptcy is over then file them.

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,239
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 1 month ago
Do I just mark the email attention "Leon"

Yes when I get it I will respond.

Regards

Leon

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Customer reply replied 1 month ago
Ok..... Thanks

You are welcome.

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Customer reply replied 1 month ago
I have emailed you the details

Ok be patient as it may take 24 hours.

As soon as I get it I will reply.

There is no need to reply to this.

Take care.

Leon

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Is the company in orders 1 and 2 the one that has gone into liquidation?

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