Selling marital assets/marital property, such as a family home or an investment property, before a property settlement agreement can be legally complex and calls for thoughtful consideration of the Family Law Act requirements.
Family Law Act Requirements
The Family Law Act governs family law proceedings and the family law system as a whole in Australia, this includes matters relating to divorce and property settlements. When selling marital property or assets before divorce proceedings, the act mandates that both parties in question have to disclose:
- All financial resources
- Investments
- The market value of personal or marital property
- Personal debts
- Cash within bank accounts
- All assets from the property pool
How To Sell A House When One Partner Refuses In Australia
When it comes to negotiating a property settlement, extra stress can arise when you have differing opinions about what should happen with selling assets and the family home.
Usually, one party wants to keep the family home and other assets while the other party wants to sell assets before divorce. If your ex refuses to or is delaying the sale of the family home, then the good news is you have a few different options before forcing the sale via court order.
Is selling the house necessary? It is entirely possible to finalise a property settlement without the need for selling the home. If your ex can refinance the family home into their sole name, the solution could be that they can buy you out if they don’t want to sell the house.
Option 2 – If your ex is delaying the sale of the house, can you agree to sell the house at a later date?
Generally, you should finalise your property settlement sooner rather than later; however, agreeing to sell the house at a later date might work in some circumstances. Work out why your ex wants to keep the home – if a child is still in school, for example, they may want to keep the house, not to disrupt the child’s life. Perhaps an agreement can be made for the home to be sold upon graduation.
Option 3 – If your ex still won’t sell the house can you try family law mediation?
Family law mediation is an invaluable tool when properly utilised and prepared for. In mediation, you can lay all of your issues on the table. If your ex still refuses to sell the house after mediation, and you have no other options, then you can apply to the court to force the sale.
How to force ex to sell your house via court order
If your ex-spouse refuses to sell the house, you can force the sale of the home via a court order. If you take this option, it means that a Family Law Courts judge can order that a home be sold as part of a property settlement.
Part of the order will be that the place is independently valued, and a real estate agent is appointed to sell the house for that value. If the court makes the order, it will stipulate a time frame for when the house is sold and will usually give whichever party is not obstructing the sale.
The court will likely make an order for the sale of a property when the following applies:-
- If there is no other way to affect a property settlement that is just and equitable in all the circumstances.
- If selling the house does not affect the parties’ ability to earn income.
- If one party is in default of a court order.
- If the party seeking to retain the property cannot demonstrate to the court that they can refinance the property’s debt into their sole name.
Can I sell my house if my ex doesn’t want to?
The bottom line is yes. If your ex doesn’t want to sign the necessary transfer papers required to sell your home, there are ways to go about forcing a sale of a jointly owned house. However, navigating this process can be complex and may vary depending on the legal landscape and specific circumstances involved. It’s advisable to seek legal advice from a trusted professional with experience in asset sales as well as property law and family law to understand your rights and options fully. They can provide guidance on the appropriate legal steps to take, such as initiating court proceedings or seeking mediation, to facilitate the sale of the property and resolve any disputes amicably.
