Property Dispute during Divorce Proceedings
The inquiry revolves around a property matter concerning a partner's divorce proceedings in Western Australia. The partner's ex-spouse has resided in their jointly owned house, solely titled in his name, without paying rent since their separation over 30 years ago. A draft financial order has been proposed as part of the divorce, which stipulates that the ex-partner can continue living in the property rent-free and that the house cannot be sold without mutual agreement or additional court order. This agreement also includes a clean break regarding any financial claims, preventing either party from pursuing further claims against the other for assets, pensions, or estates. The partner has been advised by their legal representative to accept these terms due to potential high costs associated with contesting them.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkCan my partner contest the financial order proposed by his ex-partner if he disagrees with its terms?
Yes, your partner can contest the financial order if he believes the terms are unfavorable. Contesting typically requires demonstrating that the order is unfair or impractical based on his financial situation or future plans. He would need to submit an application to the family court to modify or reject the order, and it would be wise to gather supporting evidence such as financial records or property valuations. Seeking legal advice before taking action is recommended, as the court will consider numerous factors, including the needs and assets of both parties.
What are the potential legal implications if my partner agrees to the financial order proposed by his ex-partner?
Agreeing to the proposed financial order would result in a clean break settlement under relevant family law. This means both parties would relinquish future financial claims against each other, impacting rights to alimony, property adjustments, or pension sharing. Importantly, your partner would also need the ex-partner's consent to sell the house unless there is a court order to the contrary. Further, this decision may entail ongoing financial responsibilities concerning property maintenance and repairs.
Is there any way to negotiate the terms of the financial order to reach a more favorable agreement for my partner?
Negotiation of the financial order is possible if both parties are open to discussion. Your partner can propose modifications, such as altering the terms of property expenses or establishing a timeline for the ex-partner's occupancy. Mediation is a recommended path for these discussions, with the potential for a cost-effective resolution before moving to court. Collaboration with a legal representative can enhance the negotiation process.
Does the length of time his ex-partner has lived in the property affect her rights to remain there or claim ownership?
While long-term residency does not automatically confer ownership rights, it can influence court decisions regarding occupancy, particularly under the terms of the consent order allowing her to live there rent-free based on mutual agreements. The residency acknowledgment may affect her occupancy rights, although it does not establish ownership.
Could the outcome of the divorce proceedings affect his ability to sell the house in the future?
Yes, the divorce proceedings outcome, as indicated by the draft financial order, considerably impacts your partner's future ability to sell the house. The order specifies that the property cannot be sold without both parties' consent unless a defining event occurs. This means that without mutual agreement or an additional court ruling, your partner cannot sell the property unilaterally.
