Property and Custody Issues
The individual has recently separated from their partner, with whom they share two children, and is currently residing in their jointly owned family home. A restraining order has been issued due to concerns regarding family violence, and there are police charges related to violence. The couple purchased an investment property during the marriage using equity from their family home, which is registered solely in the partner's name for mortgage purposes. There are concerns that the partner intends to sell this investment property without consent, potentially retaining the profits for personal gain. This situation involves aspects of family law, property law, and domestic violence.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat are my rights regarding the investment property, considering it was purchased solely in my partner's name but with equity from our family home?
In Australia, family law recognizes that assets acquired during a marriage, regardless of whose name they are in, are considered joint matrimonial property. This includes the investment property, as it was purchased using equity from the jointly owned family home. You have the right to claim an interest in the investment property during property settlement proceedings. The court will consider various factors, including contributions made by both parties and the future needs of each party. It's advisable to consult with a solicitor to ensure that your rights are adequately represented during the division of property.
How can I protect my interest in the family home and the investment property during the separation process?
To protect your interest in the family home and the investment property, you should consider registering a caveat on both properties. A caveat is a legal notice that prevents the properties from being sold or transferred without your consent. This will help secure your interest in these assets during the separation process. You may also wish to seek interim financial orders from the Family Court to ensure your financial needs are met while the property settlement is being negotiated.
What legal steps should I take to prevent my partner from selling the investment property without my consent?
To prevent your partner from selling the investment property without your consent, you should consider applying for a caveat on the property. A caveat will register your interest in the property with the Land Titles Office, preventing any sale or transfer without your permission. It's advisable to seek legal advice to ensure the caveat is correctly lodged and to explore seeking an injunction through the Family Court to stop any sale until property settlement is finalized.
How does the restraining order and ongoing police charges for family violence impact the property settlement process?
The restraining order and ongoing police charges for family violence can significantly impact the property settlement process. The Family Court prioritizes the safety and welfare of parties involved. The court may expedite proceedings or apply protective measures in property settlements to ensure your safety, such as exclusive occupancy of the family home. In addition, family violence is a relevant factor in assessing property settlements, potentially leading to a more favorable property division for the non-violent party.
What provisions exist to ensure the safety and welfare of my children during this separation and any legal proceedings?
To ensure the safety and welfare of your children during this separation, you can seek a Family Violence Intervention Order, which may include conditions for child protection. The Family Court prioritizes the best interests of the children in parenting arrangements. You may apply for a parenting order to ensure a stable and safe living environment for your children.
How can I get house keys returned?
To retrieve the house keys, considering there's a restraining order in place, you may request that the court include a provision for the return of keys as part of the restraining order or as a separate application. If the restraining order doesn't already cover this, you can apply to the relevant court to include such a provision.
If the investment property has already been sold, what should I do and do I have any rights to prevent the sale?
If the investment property has already been sold, you may still have recourse through the Family Court. Any property acquired during the marriage can be considered in the property settlement, regardless of whose name it is in. You should seek legal advice to potentially initiate proceedings for an injunction to prevent the distribution of the proceeds from the sale until a property settlement is reached.
What repercussions are there if he has sold the property without my consent and do I still share interest in the property that's solely in his name?
If your partner sold the investment property without your consent, you may still have a claim to the proceeds because the property was purchased using equity from your jointly owned family home. You could potentially seek a court order for an injunction to prevent the sale or distribution of proceeds until a property settlement is finalized.
