Removal as guarantor from ex's home loan

[EarlyRetirement]

Are you entitled to claim half of her property in family court, if you were in de facto relationship more than 12 months? Or does this rule only apply in VIC?

Or at least you could threaten her that you will go after half in the court if she does not sign.

It's a commonly-thought, but incorrect, belief that by marrying someone (or being in a de facto relationship with them) that you will automatically get 50% of what they have when you separate. That may be the case for long marriages or long de facto relationships (depending on a number of factors), but it is not going to happen for ones which only last a few years.

FYI, to make an application in the Federal Magistrates Court in relation to de facto property settlement, you need to have been in a de facto relationship for 2 years or more, have a child of the de facto relationship or be able to argue that you have made 'substantial contributions' and it would be unfair if you weren't allowed to commence proceedings. It's a technical area - speak to a good family lawyer.

 

[Peter_Tersteeg]

It's a commonly-thought, but incorrect, belief that by marrying someone (or being in a de facto relationship with them) that you will automatically get 50% of what they have when you separate. That may be the case for long marriages or long de facto relationships (depending on a number of factors), but it is not going to happen for ones which only last a few years.

Quite true, but the threat of this might be enough to get someone to remove a guarantee. Consider the scenario...

Borrower defaults and guarantor has to carry the debt. At this point the guarantor is making contributions to the ongoing maintenance of the property. Whilst it's not an absolute link to a right to part ownership, it does indicate an implied interest. The easiest way to remove the implication is to remove the guarantee before something goes wrong.

This would be tricky to argue in court, but an argument could be made. Presented properly to the ex and they might prefer to avoid the argument althogether.

 

[Terryw]

FYI, to make an application in the Federal Magistrates Court in relation to de facto property settlement, you need to have been in a de facto relationship for 2 years or more, have a child of the de facto relationship or be able to argue that you have made 'substantial contributions' and it would be unfair if you weren't allowed to commence proceedings. It's a technical area - speak to a good family lawyer.

Not any more.

Under the Family Law Act definition of defacto, s4AA, there is no minimum time needed to qualify as a de facto.
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4aa.html

 

[Terryw]

SM

You are probably in a bit of a bind as you would have likely provided a guarantee for the full term of the loan, ie 25 - 30 years. This would likely be irrevockable with the only way out being if the ex agrees to renegotiate the loan which may entail high exit fees.

Because of the break up in the relationship you may be able to get a court order (family court) for her to redo the loan as part of the Financial Agreement between yourselves.

You should also be able to place a caveat on the title as you would have an interest in the property, as mentioned above. This may help your position by strengthening your bargining power. If you put a caveat on it she cannot sell or remortgage the property. She may also be worried you could make a claim on it.

 

[EarlyRetirement]

Not any more.

Under the Family Law Act definition of defacto, s4AA, there is no minimum time needed to qualify as a de facto.
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4aa.html

Terry, have a read of Section 90SB - there is still a minimum time frame, subject to the other conditions in my earlier post.

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90sb.html

 

[Terryw]

ER

You are right. Its seems there is no minimum time to qualify as a defacto, but min time (unless there are children) for a property claim.

Thanks for pointing this out.