SA Divorce - Property Settlement Expectations?

[Jane Oswald]

Hi all,

I'm currently seeking a divorce from my husband and would really appreciate some advice on an appropriate property settlement.

Here's the context, I'll try to keep it short but apologies if I ramble!

Married 24 years ago, couple years later I had the first bub. I went back to uni to continue studying and he looked after her, while also doing part-time work at points, while his parent's would mind her. This dynamic continued for quite a few years, with me graduating uni four years later, and getting a job as librarian. The job was low paying but I worked full time and he stayed home. The next year we got a mortgage and moved into house, so we were no longer renting.

Our daughter started school that year, two years later I moved to slightly better job. That year, as my partners father had died and his mother was no longer able to live on her own (and we could not afford ongoing care in a facility, plus all three of us would much prefer her to have a more autonomous life) we decided to build a granny flat in our very large back-yard for her to live in. We built it ourselves.

Two years later I had bub number 2, and took off 6 months maternity leave, and went back to work. After a year and a half back, I switched to my current workplace, where I've been working for 10 years. At this point, as we needed more money, and my first daughter was old enough to look after her brother on her own (as well as with the nanna in the granny flat, often), my partner started part-time work as a librarian (without qualifications). He didn't earn much, but the additional $350 a week was needed. He still maintained primary care of the children, in that he got them both off to school (the older high school, younger primary school) and handled all of that stuff, as well as the household bills etc and all of that, but the house was often very untidy, and he would be lazy to clean up the dishes often. But, as he is the only parent that drives, he did do the most of all of those tasks, like shopping and picking them up etc. But he also didn't bring in anywhere near as much financially.

The next year, my partner's mother had a massive stroke, which was extremely emotionally, financially and time draining. After six months of hospitalization, she went into rehab for three months, and then into a high care facility for the next 5 years. When we realized we would need to put her into care, my partner was very adamant about finding a high quality place, as his father had died in a nursing home due to negligence. As this was going to be expensive, he got a job as a relatively low level part-time public servant position at my work, which paid more than his last job. Obviously, this was a very tumultuous time, and a very expensive time, our marriage began to deteriorate, and I decided to move out into the granny flat for a few nights a week (also because I could smoke out there, not in the main house) and eventually this turned into a permanent arrangement, and I've been living out here for the past 8 years. There have been other marital issues, of course, but when I began demanding that he fix things between us at the beginning of this year, nothing really changed at all.

So I've told him I want a divorce.

Now, I want to buy him out of the family house and have him move somewhere else, while I rent out the granny flat to help pay off the remaining mortgage. And I've got him to agree that if he want's to keep assets that are 'his' ie: the cars, he'll have to pay half of their value. I've also got him to agree to 50% of our savings (of about 11k). Also, our son who is now 12, has voiced that he will want to live at his dad's at least half of the time, even though he won't be in the family home... and potentially not close to his school. But still, will I have to pay child support to my partner, if my son is there 50% of the time? Also, he's mentioned 'spousal maintenance' but surely that isn't neccessary. He earns about 22-25k a year in his current job, I earn about 68k, but I've actually studied and worked hard at a career.

Basically, what type of division of everything would I be looking at? I don't really know... But neither of us particularly want to have to get lawyers involved as its too out of our price range, particularly for him.

Thanks for any help or insights you could possibly give!

 

[AllForHer]

I'll do my best to help here, but in advance, my forte is parenting matters - I'm still learning property settlements.

First of all, let me say how sorry I am to hear of your marriage breakdown. I imagine this is a tough time for all involved but it's good to hear that it seems reasonably amicable thus far.

So, if a court were to make this decision for you (which, thankfully, doesn't sound like a necessary step in your circumstances), it would be decided on a four-step process:

1. What's the net value of the asset pool?
2. What were the financial and non-financial contributions of each party to the marriage?
3. Generally speaking, how will the orders affect each party based on their circumstances? This covers things like future earning capacity, etc.
4. Are the proposed orders just an equitable?

Given the information you have provided here, you could potentially be looking at a 60/40 or hopefully a 55/45 split in your ex's favour due to your increased capacity for future earnings and your ex's role in raising the kids. I'm not too well educated on spousal maintenance just yet, but for child support, there is a very high chance that the significant disparity between your income and his would mean that even with 50/50 care, you would be required to pay some child support, though probably not very much.

You can settle parenting matters at the same time, and given your concern about your son's desire to live with dad, I might suggest it would be a good idea to do so. The more you can settle on, the less likely it is to turn into litigation.

My advice is to get legal advice - I mean, you have to anyway for consent orders on property settlements. Legal Aid can give you advice for free, so put on paper what you are thinking about as a proposal and pitch it to a solicitor. Additionally, you might benefit from a conciliation conference or similar to discuss the settlement with your ex. Have some wiggle room - a minimum you would be willing to settle for, recognising that your ex's care for the kids enabled you to get increasingly better employment.

Have a look at the Family Law Act 1975, namely Part VIII and more specifically sections 79 and 75 for what you need to know in terms of legislation for property settlements. I hope this helps.

 

[Sarah J]

Hi Jane,

Further to what AllFoHer wrote above, have a look at the other LawAnswers Family Law Forum threads on here. In particular:

- "Property Settlement if I Got a Divorce"
- "Separation and Selling Family Home"
- "New Husband wants half of everything - Where do I stand?"

These are to give you some idea of what the court takes into consideration. In short, the court will consider the fact that you have a higher earning capacity and that your partner looked after the children/house while you studied.

If you and your partner has come to any agreements in relation to custody of your son or property division, note this down in writing and have this dated and signed if possible. Any court order will consider this first. As you wish to avoid lawyers and courts, it is best to compile a list of your shared assets (as well as individual assets) and go through this with your partner. Remember that while something may be in one person's name, the other person would have most likely also contributed to the asset by sharing the load in other areas to allow that one person to obtain said thing and hence, this should be taken into account as well.

Best of luck. Property settlements are always difficult but in the end, it is best to be made by agreement between the partners than have a court appoint the assets.