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Watson & Watson Lawyers have again successfully concluded a hard fought and factually complex property case on behalf of the husband. The wife commenced the process for property division and at the time of commencement the husband was not legally represented. The Lawyers acting for the wife had sent to the husband a letter proposing a property division on a basis that was favourable to the wife and unfavourable to the husband. The letter was aggressive and the husband interpreted the letter as putting him in a position where he had no option but to accept the offer.
Watson & Watson Lawyers acted for the husband and were able to conclude the case on a settled basis in the husband’s favour.
Watson & Watson Lawyers approached the matter by:
The husband contended that there should be an equal division of property but acknowledged that there should be an adjustment to the wife to take into account the fact that the children were living with her.
The husband asserted that he had made most of the contributions. He had earned more during the marriage. He had received a gift from his parents. He had by his own efforts, renovated all of the properties and increased their value.
The wife contented that she had made the most contributions. The wife asserted that it came from the family Trust that was responsible for the husband and wife building up the property portfolio and increasing the value of the overall asset pool. The wife also said that moneys that came to her from the family Trust were repayable to the family Trust.
The wife said that the moneys paid by the Trust should be paid back to the Trust and that only the remaining money should be divided and that money should be divided in her favour. The wife said that the Trust loaned her money. The husband said that the Trust paid little or nothing but if it did, it was not repayable.
A number of issues arose:
The husband said that the family Trust had not provided any moneys that resulted in the acquisition, maintenance and improvement of property.
The issue of whether the moneys allegedly advanced were gifted or loaned made a very big difference to the financial outcome for each of the parties. In effect if money had to be paid back to the family Trust, then the amount of money available for division between the husband and the wife was significantly reduced. The husband’s view was that if the money was paid back to the Trust, the Trustee of the Trust would pay it back to the wife.
The wife was asked to provide a copy of the family Trust deed and copy of the financial statements for the Trust fund for each year of the marriage and each year following separation. The financial statements of the Trust did show that moneys were advanced by the Trust to the wife but the payments made were not in large lump sums but rather in the way of smaller, regular maintenance payments.
Watson & Watson adopted the position that the moneys were not advanced by way of loan but were simply gifts to the wife by way of financial support. The wife could not show that the moneys advanced were used in the acquisition, maintenance or improvement of matrimonial property. The wife continued to maintain a position which on an analysis of the facts and financial records could not be sustained.
Proceedings were commenced in the Family Court and proceeded to a Conciliation Conference. At Conciliation, the wife’s case could not be sustained and the matter was resolved on that basis.
The identification of the husband’s position and establishing the wife’s true position given the complexity, resulted in a positive outcome for the husband within the parameters as predicted by Watson & Watson Lawyers. The Court made an Order confirming the settlement reached.
At Watson & Watson Lawyers our experienced Family Law Solicitors can assist you in achieving a fair and equitable financial/property settlement. If you are in the process or proposing to enter into financial/property settlement with your estranged spouse or partner and have any concerns/queries or need assistance in what can often be a stressful time, our Senior Family Lawyers can assist. Please contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate advice.
This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.
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