Can I Force My Ex-Partner to Sell the House?

When a relationship breaks down, disputes over the family home often arise, especially when one party wants to sell the property, and the other wants to keep it. In Australia, if negotiations fail, you may have the option to petition the Family Court to force the sale of the house as part of the property settlement process. The Family Law Act 1975 (Cth) empowers the court to make orders to ensure that assets are divided in a just and equitable manner, and this can include forcing the sale of jointly owned property.

This article provides a detailed look at the conditions under which the court may force the sale of a property, how the process works, and key case law that illustrates these principles.

 How Does the Court-Enforced Sale of a House Work?

Once the court decides to force the sale of a property, it follows a structured legal process to ensure the sale is conducted fairly. The court will typically issue the following orders to facilitate the sale:

1. Independent Valuation of the Property

The court will often require an independent valuation of the property to ensure that it is sold at a fair market price. The valuation will be conducted by a licensed property valuer who is appointed either by the court or by agreement between the parties. This valuation ensures that the sale proceeds reflect the true value of the home, preventing one party from manipulating the sale price to their advantage.

Case Example: Kane & Kane [2013] FamCA 215

In Kane & Kane, the court ordered the family home to be sold and instructed that it be independently valued to ensure the sale was conducted fairly. The valuation provided a baseline price for the real estate agent tasked with selling the home, ensuring neither party was disadvantaged by an under- or over-valuation​.

2. Appointment of a Real Estate Agent

Once the property has been valued, the court will appoint a real estate agent to handle the sale. The agent is responsible for marketing the property, liaising with potential buyers, and negotiating the sale. The appointment of an independent agent helps ensure the process is transparent and impartial, preventing either party from influencing the sale.

3. Court-Ordered Timeframe for the Sale

The court will usually set a timeframe within which the house must be sold. This ensures that the sale process is not unnecessarily delayed, and both parties can move forward with the settlement. If one party continues to obstruct the sale, the court can intervene further by appointing a trustee to complete the sale on their behalf.

Case Example: Bateman & Gaffney [2010] FMCAfam 103

In Bateman & Gaffney, the wife sought to delay the sale of the family home, arguing that it would disrupt her and the children’s lives. However, the court ordered a strict timeframe for the sale, noting that the sale proceeds were necessary to finalise the property settlement and that the wife could use part of the proceeds to secure alternative housing. The case underscores the court’s commitment to ensuring that sales proceed in a timely manner​.

 What Happens If One Party Refuses to Cooperate?

If one party refuses to sign the necessary documents to facilitate the sale, the court has the power to appoint a trustee to act on their behalf. The trustee is legally authorised to sign the sale documents, manage the transaction, and ensure that the property is sold in compliance with the court’s orders.

Case Example: Weir v Weir [1993] FamCA 100

In Weir, the husband refused to sign the documents needed to sell the family home. The court appointed a trustee to handle the sale on his behalf, effectively removing his ability to delay the process. This case demonstrates that the court has strong powers to ensure compliance and prevent one party from obstructing the settlement​.

Conclusion: Forcing the Sale of a House in Australia

In family law matters, forcing the sale of a jointly owned property is a complex process, but it is entirely possible with the intervention of the Family Court. If negotiations with your ex-partner fail and one party refuses to sell, the court can issue an order to facilitate the sale, ensuring a just and equitable settlement. Whether through independent valuation, the appointment of a real estate agent, or the involvement of a trustee, the court has the tools to ensure that the sale proceeds fairly and in a timely manner.

If you find yourself in a situation where your ex-partner is refusing to sell the house or obstructing the process, seeking legal advice early can help you understand your rights and options. A family lawyer can guide you through the legal steps necessary to force the sale and secure your share of the property.