Does your life feel like it is falling apart?
“I am doing everything I can to remain positive but it seems like my personal life is becoming harder and harder every day. I know it’s important to focus on the positive and not the negative so what can I do to handle this situation?”
Look at the Big Picture and Focus
Start taking steps towards your goals…
A first step is to obtain information. Even if it’s just tiny steps every day, stay focused on where you want to go, and keep moving forwards. Then the little things you’re going through right now won’t matter as much because you have a new direction to focus on instead. Look for a Family Lawyer who can give you the information you need.
Harrigan Lawyers can assist with all family law matters including:
- Property Division Settlements
- Parenting Plans, Children & Residence Issues
- Relocation Advice
- Divorce Applications
- Restraining Orders
- Defacto Property Agreements
We are members of the Family Law Practitioners Association (FLPA) which is Queensland’s leading professional industry body representing those who work in family law. We have access to a network of social workers, barristers and psychologists. Get the information you need, contact Harrigan Lawyers today on (07) 3733 1542.
Family Lawyers FAQ
We’re now separated, s/he can’t claim any of my assets or my payrise now?
Wrong. If you continue to accumulate assets after separation, on the expectation that they are out-of-bounds to your ex, then you are sadly mistaken.
There is no magical cut off line that separates assets accumulated after the date of separation, from those accumulated during the course of the relationship. The court will look at all assets and liabilities, even those gained post settlement.
However, this does not necessarily mean that such assets will be divided equally, or that your ex will receive a share at all.
Depending on the circumstances, if you haven’t already reached your own binding agreement about how your property will be divided, then any further assets you acquire in your name after separation, could be up for grabs by your ex-partner.
The case of Farmer and Bramley (2000) found that twenty months after separation, a husband won $5 million in the lotto. Even though the win occurred 20 months after separation, the wife was successful in her claim and received a $750,000 share of the win.
Inheritences received after separation are not outside of the limits of the Court. Nor are expected inheritances for that matter – that’s right, the courts have confirmed that expected inheritances can be taken into account in a property settlement. In De Angelis and De Angelis (2003), the court noted that in a very short time, given the ages of the Wife’s mother and aunt, that it was likely the wife would receive an inheritance of about $530,000. This was roughly the same amount of money that the matrimonial property pool was valued at. The court considered it would be unjust if it did not take the prospective inheritance into account, and made a 10% adjustment in favour of the husband.
You don’t even need to be married, if you acted as partners for two years or more – you are in a de facto relationship and the same rules may apply. If your relationship is heading south, then head to Forest Lake and see us for advice sooner rather than later. Call us on (07) 3733 1542 or 1300 11 40 44 today.
Can I change the locks?
Property is often owned “jointly” by married parties or de facto partners subject to any written agreement and both parties have a concurrent legal right to occupy the premises.
The legal basis of the right of a partner in possession to change the locks is not clear. You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry to the premises. You cannot break or damage the lock or the door frame.
Accordingly if you occupy the property you should seek written consent from the other person not to re-enter the property or alternatively to seek the assistance of a Court.
The Family Courts will entertain applications by parties who seek the exclusive occupancy of the matrimonial or relationship home. The Courts will take a holistic approach that will examine the financial capacity of one party (or the other) to rent a property elsewhere, the arrangements for the care of the children (i.e. who is the primary caregiver) and how one party “moving out” would affect the ability of the primary caregiver to continue in this role.
The Court will also consider violence or other conduct between the parties and their ability to self-regulate their behaviour. The Court will not consider it to be in the best interests that children be constantly exposed to loud, verbal altercations or arguments even in the absence of physical violence.
The Court may consider the physical layout of the premises to see whether or not it is possible to physically isolate a part of the house to continue occupancy but through a separate entrance with little or no common use areas.
Can my partner lock me out if I am not on title?
In the situation of a husband or wife (or defacto partner) having the house in their name and wishing to exclude the other party from the house by changing the locks, this situation is more difficult on the part of the person who is not on title (and is seeking to be included). The person on title has the “legal” right to exclusively occupy the property as owner.
It may be that the other person has an “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or access to that site.
Usually, lock changes will be considered justifiable once: (a) The separation is clearly accepted by both parties. (b) Another residence for the departing partner is fully established, and (c) All the possessions of the departing partner have been removed from the joint residence.
The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses or partners in these circumstances.
What if my partner stops paying the mortgage?
The Courts will consider a holistic approach to the evidence as to the ability of one party to contribute to the joint debts and liabilities of the marriage.
In any event the bank is an independent third party and, in the normal form of mortgage, both parties have a joint and several obligation to pay the mortgage payments. In the event that one party needs to assume all of the parties obligations until a final determination by the Courts, these additional contributions should be “added back” in any final accounting of the matrimonial property and financial resources of the parties to the relationship.
This article provides basic information only and is not a substitute for legal or other professional advice specific to your individual circumstances. If you are likely to be involved in court proceedings or legal action, you should get advice from Harrigan Lawyers.
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