Separation Property Division
The client, based in Western Australia, is seeking assistance with the division of property following a separation from their partner. They share a joint mortgage on the family home and have historically split bills equal. A declaration of trust was signed initially, specifying that the partner would receive the initial deposit back upon sale, with the remaining equity to be split equally. However, the client has since had a child and reduced their working hours for childcare, yet continued contributing equally to household expenses. The client is inquiring whether the declaration of trust remains valid and whether they can claim half of the equity, including the initial deposit.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkIs the declaration of trust we signed still enforceable given the changes in our circumstances?
The declaration of trust remains legally binding unless both parties mutually agree to amend or revoke it. However, changes in circumstances, such as having a child and altering employment for childcare, could potentially influence a court's view if the matter goes to litigation. Courts in Australia may consider the welfare of the child and fairness to both parties when interpreting such agreements, especially if strict adherence results in unfair hardship. To challenge or amend the declaration, you would typically need to demonstrate a significant change in circumstances that wasn't foreseen when the agreement was made. It would be prudent to seek legal advice to evaluate if renegotiating the terms is possible or advisable.
Am I entitled to claim half of the equity in the property, including the initial deposit, despite the declaration of trust?
You may be entitled to claim half of the equity in the property, including the initial deposit, if the court considers that the declaration of trust no longer reflects the current equitable interests due to significant changes, such as your childcare contributions and career sacrifices. The court in Australia considers various factors, including contributions to the property and the welfare of children. While the declaration of trust is a formal document, its enforceability might be reassessed if it is deemed inequitable. Legal advice specific to your circumstances is recommended to explore this further.
How does my part-time status for childcare impact my entitlements in terms of property division?
Your part-time status for childcare can impact property division as the court may consider your contributions to the family, both financial and non-financial. In Australia, financial contributions are not the sole consideration. The court will assess the overall contribution to family life, including the sacrifice of career and income, for the benefit of the family and child. This holistic approach can lead to a more favourable division of assets for you. Your reduced earning capacity and role as a primary caregiver may be seen as significant contributions, potentially influencing a departure from a strict equal split in recognition of future needs and the practical impact on your financial position post-separation.
What factors will the court consider in determining a fair property division given our joint mortgage and child-related circumstances?
The court will consider various factors in determining fair property division. The key considerations include the welfare and housing needs of your child, especially given your part-time status for childcare, which implies a primary caretaker role. The court will also assess each party's financial contributions and future needs, including your reduced earning capacity due to childcare responsibilities. Additionally, the court may consider the length of the relationship and any sacrifices made by either party. While the declaration of trust is significant, the court can override it if it leads to an unfair outcome.
What are my rights regarding our child’s custody and how might they influence property division considerations?
In Australia, child custody prioritises the child's welfare. While property division and child arrangements are technically separate issues, a parent's ability to provide a stable home environment can influence financial arrangements. The court considers factors like the child's best interests, including maintaining stability in their living situation. If you are the primary carer and have reduced your working hours to care for the child, this could potentially impact property division. It may influence the court's decision to ensure the child's housing security, possibly leading to arrangements that support your role as the primary carer.
