Sunday, 31 May 2009

Danger of property mediation and agreements without legal advice: part 1

A recent Queensland case is a telling warning for those undertaking property mediations where they have not had legal advice, and to ensure that when signing agreements with your de facto partner to get legal advice first.

In the case, SPD v DRH, the de facto wife, DRH controlled SPD and did whatever she could to ensure that he was paid zip, or at best a nominal amount.

She did this by a number of ways:
  • overstated her initial contributions-which would also have the effect of lowering his contributions
  • claimed, falsely, that the relationship had ended earlier than it had, so as to justify her taking $50,000 after that earlier date from their monies without telling him
  • of course removed that $50,000, so that he could not have access to it
  • made out to him that to keep the relationship going, he needed to transfer his half interest in the home to her (which he did), but at trial claimed that this merely reflected their agreement about the division of the property settlement
  • got him to sign an agreement then to say that the house was hers. He did not have legal advice at the time.
  • got him to sign a deed shortly after they got together to say that she would get 90% of the property- the deed being based on a false premise- the amount of her initial contributions
  • but worst of all, took him to Relationships Australia for a mediation, and got him signed up at the mediation. Again, he did not have any legal advice. This agreement excluded virtually all of their property, including the house, and was based on a 72.5/27.5 division, to give him $5000 within 24 hours!

But that's not all, the de facto wife also:

  • kept control of the house, after they separated; and
  • when she thought it a bit rich that he was asking for property settlement, complained to Channel 7, complaining about how he had breached their agreement and was now taking her to court.

The result? The trial judge did not believe the de facto wife, held the agreements were not binding, and ordered that the de facto wife pay the de facto husband $260,000 within 60 days, failing which the home would have to be sold.


Lynn said...

The tone in which this article is written brings forth a "how dare she!", or "the audacity of the woman!" type perception. Why? Male spouses do this sort of thing to female spouses on a depressingly regular basis. Over and over women are 'swindled' or coerced or talked out of or simply bullied out of taking what is their fair share of a property settlement. Many of them with children, are left almost destitute while the 'successful' male spouse continues on in the home and with his secure job and if he can get out of paying maintenance, he'll make sure he will. Why has this article taken such a derogatory tone with this case? If the genders were switched, would the story still read the same?

Stephen Page said...

The tone reflected the judgment. If the appalling behaviour were by the man to the woman, it would have been written the same way. The de facto wife subsequently appealed, trying to argue that the $5000 was all she had to pay, was unsuccessful and made to wear indemnity costs- as seen by later posts. Too often former partners (of both genders, and whether in heterosexual or same sex relationships) try and stiff their former beloveds out of a fair share. This case is a warning as to not attend mediation without getting legal advice first.

Woman Seeking Divorce said...

I don't care what gender the person was. If they're trying to rip off the other party then it's wrong. I'm currently divorcing and my husband has so far done many of the things mentioned in the article and a few more. He's shifted monies overseas, lied about his financial position, neglected to declare an asset worth nearly $2M and is claiming financial difficulty just to force me (and our children) out of our home. I can only hope that the courts will adopt a similar approach with my soon-to-be-ex husband and give me what is rightfully mine.