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The business of a failing marriage

A reader worries that his wife of 45 years is threatening to lock him out.

QUESTION:

We are in our late 60s, married 45 years but now contemplating separation and divorce – while living under the same roof.

The family home is in my wife’s name (99 per cent) due to business risks of liability. That business is now being wound down to close.

The property is freehold, no mortgages. Is a Binding Financial Agreement wise? What rights do I have to continue living there? She threatened to lock me out!

Should I have the property made 50/50 tenants in common? What costs are involved?

My wife is threatening to leave the property to our 44-year-old son.

I was diagnosed with Parkinson’s Disease four years ago. She refuses to help in any substantial way, such as massages and so on.

She put money from an inheritance into the company business ten years ago. The business was affected by the GFC and made losses before closing, so she views that I owe her $100K, which I don’t have.

ANSWER:

The panel recommends that you get legal advice as soon as possible as your concerns touch upon family law and estate law. You can seek advice without your wife’s knowledge.

Changing ownership of the home to 50/50 would require your wife’s consent and will cost approximately $700.

Changing the home ownership shares will effect what assets you can each gift in your wills. You can’t control what gifts your wife makes in her will of assets held in her name. However, you can challenge her will after her death.

Changing the ownership shares of the home will not have any impact on a property settlement if you do separate. In the event the relationship ends, all assets and debts owned by either of you will be considered. In addition, your individual contributions (eg the inheritance) and your future needs (eg your health) will impact upon what share of the assets you are each to retain.

The property settlement may require the sale of the home. Alternatively, one of you can “buy” the other person out in exchange for a fair cash amount. You can both live under the same roof while the settlement is negotiated, but this may become untenable and one of you might choose to move out. Even by holding only one per cent of the home, it is unlikely your wife will successfully lock you out before property settlement unless she obtains an interim court order.

The matrimonial property settlement could be agreed and formalised in a Binding Financial Agreement or consent order. If an agreement cannot be negotiated, then the matter can be determined by the Family Court.

Submit Your Questions

Have you got a question you’d like us to tackle?

Fill out the form below or send questions to Family Forum, The Advertiser, 31 Waymouth St, Adelaide 5000.

We treat communications in strict confidence except when the law demands otherwise, as in child abuse.

Relationships Australia (SA) appoints panels of general practitioners, medical specialists, lawyers, therapeutic and financial counsellors to discuss each letter before the appropriate professional answers it.

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