That's my understanding also My sister just went through the same thing. It cost her an administratin fee of less than $100 to have the name taken off the title as it was pursuant to a court order
boods
Splitting up, who gets the equity
- Thread starter plucka99
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That's my understanding also My sister just went through the same thing. It cost her an administratin fee of less than $100 to have the name taken off the title as it was pursuant to a court order
boods
Jiggly Puff is spot on the money...
Basically, you are a de facto if you are "living in a marriage like relationship" (see the factors listed in Piston Broke's post....
No one factor is preferred above the others... you have to look at all the facts. However, given your friend and her "partner" have bought a house together (presumably with the intention of the relationship being long term) they are no most likely in a 'de facto'.. The problem (for her) is that the Family Law Act only allows you to bring a claim under the Family Court Act if either they have been in a de facto relationship for at least 2 years OR there is a child of the relationship OR if there would be a substantial injustice were the court not to make orders.
The last proviso may apply here. I haven't just checked the legislation but it is in the section reffered to by Piston Broke. Your friend needs to see a good family lawyer rather than a property lawyer.
In the event that the exception (of substantial injustice) does not apply, then your friend has to pursue a remedy outside of the Family Court jurisdiction. This would be in the Supreme Court. Her argument would be that there is a "purchase price trust" whereby the initial contribution (of the deposit) by her should "result" back to her. This is a type of 'resulting trust' or equitable relief and was discussed by the High Court in Claverley v Green.
Faced with a convincing letter from a competent solicitor, you friend's ex partner would be well advised to refund the deposit and split the remaining equity. Of course, if there is 'negative equity' your frined may have to bear some of that loss...
Basically, you are a de facto if you are "living in a marriage like relationship" (see the factors listed in Piston Broke's post....
No one factor is preferred above the others... you have to look at all the facts. However, given your friend and her "partner" have bought a house together (presumably with the intention of the relationship being long term) they are no most likely in a 'de facto'.. The problem (for her) is that the Family Law Act only allows you to bring a claim under the Family Court Act if either they have been in a de facto relationship for at least 2 years OR there is a child of the relationship OR if there would be a substantial injustice were the court not to make orders.
The last proviso may apply here. I haven't just checked the legislation but it is in the section reffered to by Piston Broke. Your friend needs to see a good family lawyer rather than a property lawyer.
In the event that the exception (of substantial injustice) does not apply, then your friend has to pursue a remedy outside of the Family Court jurisdiction. This would be in the Supreme Court. Her argument would be that there is a "purchase price trust" whereby the initial contribution (of the deposit) by her should "result" back to her. This is a type of 'resulting trust' or equitable relief and was discussed by the High Court in Claverley v Green.
Faced with a convincing letter from a competent solicitor, you friend's ex partner would be well advised to refund the deposit and split the remaining equity. Of course, if there is 'negative equity' your frined may have to bear some of that loss...
And just an addendum to the last post "they are no most likely" should be "they are most likely.
The exception is "serious injustice': see
FAMILY LAW ACT 1975 - SECT 90SB
When this Division applies--length of relationship etc.
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship , see section 90RB.
(And also see Sec 90SM(4) - your friend having made substantial (financial) contributions to the property she would *most likely* (seek competent legal advice on this issue) meet the "serious injustice" requirement.
The exception is "serious injustice': see
FAMILY LAW ACT 1975 - SECT 90SB
When this Division applies--length of relationship etc.
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship , see section 90RB.
(And also see Sec 90SM(4) - your friend having made substantial (financial) contributions to the property she would *most likely* (seek competent legal advice on this issue) meet the "serious injustice" requirement.
There are a stack of reasons why the relationship is not de-facto,
given 2 mths, and their finances were separate & independent.
Gee and what is "living in a marriage like relationship" exactly?
Nothing because there really is'nt any definition.
The others are also fudgy concepts and thus expensive to argue in court.
Even a de-facto or "living in a marriage like relationship" does'nt make for a clear cut case, because the property was purchased after "living in a marriage like relationship" and if both made contributions to interest, bills etc it becomes even more intertwined.
The Calverley v Green is a different scenario imo where a trust is created.
And that case does not negate any interest in a property to any member of the relationship.
from http://www.australianbiz.com.au/business_articles.aspx?i=196&p=1 in regards to that and a similar case in the High court
My point is simply: legal action and threats of legal action should be a last resort.
A "living in a marriage like relationship" may not result in a good outcome either.
given 2 mths, and their finances were separate & independent.
Gee and what is "living in a marriage like relationship" exactly?
Nothing because there really is'nt any definition.
The others are also fudgy concepts and thus expensive to argue in court.
Even a de-facto or "living in a marriage like relationship" does'nt make for a clear cut case, because the property was purchased after "living in a marriage like relationship" and if both made contributions to interest, bills etc it becomes even more intertwined.
The Calverley v Green is a different scenario imo where a trust is created.
And that case does not negate any interest in a property to any member of the relationship.
from http://www.australianbiz.com.au/business_articles.aspx?i=196&p=1 in regards to that and a similar case in the High court
My point is simply: legal action and threats of legal action should be a last resort.
A "living in a marriage like relationship" may not result in a good outcome either.
Apparently the guy is happy to do the right thing and walk away. But she is liable for the 50% stamp duty. But interested about this court order, how does one go about this and is it a long or expensive process?
That's good to hear. I hope she has learnt her lesson and in future trusts no one and protects her assets!
When it somes to things like car accidents, we aren't in love with the person we just crashed into, and we aren't in love with the panel beaters either.
Not to say that anyone should be getting into romantic relationships with the people they crash into, or the panel beaters repairing thier car, just to avoid car repair costs, which would negate the need for insurance.
If somebody doesn't allow you to protect your assets (e.g. prenup), then how much do they truly love you?
I would never enter a relationship with someone who either didn't bring to it the same assets as myself, or didn't allow me to protect my own. I work too hard and sacrifice too much to risk just handing half of it over if it ends badly. If they don't like that, then they can bugger off and find some other sucker.
It wasn't her house, it was theirs. She tipped in the deposit on the proviso that when he sold his place, he would put the proceeds into their home.
Did you stop to think that maybe she's the one that pulled the plug on this? Keep in mind that we are getting one person's (very vague) point of view of one side of the story.
Yes, which he never did. So she effectively lent him $70K (or whatever it was) on the promise he'd pay her back (inject in the house, whatever terminology you want to use - same outcome). Stupid move in my opinion, I'd have had that loan written up formally. Doesn't matter who ended the relationship, fact is if it got nasty, she could have lost her life savings (well half of it). Fortunately it looks like it's going to end well for them both as they are being reasonable and fair. Doesn't always happen when things end though. In my opinion one should always protect themselves and not always assume things will end happily ever after.
For NSW property here is the exemption in the Duties Act. QLD would probably have something similar.
http://www.austlii.edu.au/au/legis/nsw/consol_act/da199793/s163b.html
I would never enter a relationship with someone who either didn't bring to it the same assets as myself, or didn't allow me to protect my own. I work too hard and sacrifice too much to risk just handing half of it over if it ends badly. If they don't like that, then they can bugger off and find some other sucker.
Your words and tone imply that you are bringing either the same or greater than half the resources to a relationship.
If what you brought to the situation amounted to less than 1%, what would you do ?? Would you force them to sign a document stating that he won't come after you for that measly 0.4% before it all got hot and heavy ?? What would most likely happen is their solly's would be after you, with a pen in one hand, and a condom in the other....
I'll worry about that when I meet the perfect gentleman with millions of dollars. I'm talking about protecting myself in the event of someone having less and could harm me financially. If in your scenario, he wanted me to sign something to protect himself, then I'd totally understand and be willing to. As for the condom, by all means, NO amount of money in the world would persuade me to want to have children, even if it meant being entitled to more.
Other option Terry is to lease rather than buy, sometimes the numbers just add up.
http://www.erpgonewild.com/buy-versus-lease.htm
Yeah, because his house didn't sell. But let's not let a pesky little fact like that get in the way.
I was in a similar situation a few years back (on a much much smaller scale) where I had put the majority of funds into an investment with my then girlfriend. She wanted to split the assets 50/50, until I made her understand that since the original split wasn't 50/50, that the only fair solution was to split it according to how much each of us had put in.
Also, I find Vincenzo's idea of 'romance' to be quite amusing. There's no such thing as romance and love in divorce court, mate! That's what the insurance is for.
they lived together for a few months? she paid the deposit? he has contributed how much??
get a legal opinion but it would appear his chances of claiming anything like 50% of anything would be remote? he could try, people always can but it would be unlikely to be successful.
did they know each other for long prior to this major purchase?
hope it resolves soon.
It is a good thing that he has agreed to do it amicably. Family law is not my area of interest but succession planning/ asset protection is so have some exposure to it and am still completeing my Juris Doctor so won't be admitted as lawyer until end of next year. However my limited understanding is outlined below:
The laws were changed by the Rudd Government to allow same sex couples to have many of the same property rights at law as hetero couples. However the definitions were expanded too greatly and this is currently a grey area that is waiting ate least one appeal level court outcome (preferrably several to allow for different scenarios) to determine the common law interpretation. A decision by a court at the same level can be persuasive but is not binding in the same was a decision of a court at a higher level is. So just cause one family court judge rules on something does not mean that others need to follow, also if the case can be differentiated on the facts then superior court judgments can also be non binding, hence the need for several superior court decisions for clarification. An Attorney general can also ask a superior court for it's interpretation of the law but that has not happened as yet.
There was a case recently on the Gold Coast where a lady has lodge a claim as a defacto on a married man. He claims that she was a mistress and only one of many. She did acknowledge they had a threesome with on of the other women, however he gave her some necklace, paid for some hotel rooms a few other things here and there over not too long a period (can't remember how long) and she is claiming that these expenses created a financial dependence and therefore a defacto relationship.
There also has been several other cases launched where a married man has been accused of being his mistresses defacto and therefor that mistress is entitled to a share of his assets.
I am not aware of the outcomes of any of these, the point is though there are grounds to launch such legal action, defending them would be expensive and stressful and your friend would not want to be one of the test cases that goes to an appeal court.
Again not at all my field so take above with grain of salt
The laws were changed by the Rudd Government to allow same sex couples to have many of the same property rights at law as hetero couples. However the definitions were expanded too greatly and this is currently a grey area that is waiting ate least one appeal level court outcome (preferrably several to allow for different scenarios) to determine the common law interpretation. A decision by a court at the same level can be persuasive but is not binding in the same was a decision of a court at a higher level is. So just cause one family court judge rules on something does not mean that others need to follow, also if the case can be differentiated on the facts then superior court judgments can also be non binding, hence the need for several superior court decisions for clarification. An Attorney general can also ask a superior court for it's interpretation of the law but that has not happened as yet.
There was a case recently on the Gold Coast where a lady has lodge a claim as a defacto on a married man. He claims that she was a mistress and only one of many. She did acknowledge they had a threesome with on of the other women, however he gave her some necklace, paid for some hotel rooms a few other things here and there over not too long a period (can't remember how long) and she is claiming that these expenses created a financial dependence and therefore a defacto relationship.
There also has been several other cases launched where a married man has been accused of being his mistresses defacto and therefor that mistress is entitled to a share of his assets.
I am not aware of the outcomes of any of these, the point is though there are grounds to launch such legal action, defending them would be expensive and stressful and your friend would not want to be one of the test cases that goes to an appeal court.
Again not at all my field so take above with grain of salt
