Selling Property After A Divorce Or Separation: A Guide
Ending a relationship is a complicated process, fraught with emotion. Adding the complexities of jointly owned property can make it even more challenging. This guide is designed to help you navigate the legal labyrinth of selling the property following a divorce or separation.
UNDERSTANDING THE LEGAL LANDSCAPE
The Family Law Act stipulates that Australian property must be divided equitably in case of a relationship breakdown. However, ‘equitable’ does not necessarily mean ‘equal’. Several factors, such as financial contributions and future needs, are considered when determining how assets should be distributed. Property is sold in two ways: through formal agreements or court orders.
- Formal Agreements: If both parties can reach an agreement, they can formalise it through a Binding Financial Agreement (BFA) or Consent Orders. These are legally binding and clearly outline how the property will be divided.
- Court Orders: If an agreement can’t be reached, the issue may need to be settled in court. This is typically a last resort due to the time and emotional cost involved.
If both parties agree with respect to selling your property, it is a lot less stressful and expensive than seeking court orders to sell it.
PREPARING THE PROPERTY FOR SALE
For many, finalising the sale of property swiftly following separation becomes necessary, as one or both individuals must secure new living arrangements. This is especially challenging if you are still paying off a mortgage. Before you can sell your property, here are some critical steps to consider:
- Ensure Everyone Agrees: Both parties must agree to sell the property for the asking price. If one party doesn’t consent, you may need to apply for a court order to settle the dispute and sell.
- Assess the Property Condition: Ensure your property is in a sellable condition. This may involve minor repairs or even home staging to attract potential buyers. You will need to agree ahead of time on how you will divide any associated costs.
- Find a Real Estate Agent: Choose an agent who can guide you through the selling process. Do your homework and select someone who understands your unique situation.
PROCEEDS FROM THE SALE
Once the property is sold, the proceeds will generally be used to pay off any outstanding mortgage. What’s left is typically divided according to the agreement in place, whether that’s a BFA, Consent Order, or a court decision. It’s worth noting that this process may be more complex if other creditors are involved or if the property was purchased with a financial contribution from a third party, such as a parent. In these cases, you will likely need to engage the help of a lawyer to ensure that all parties agree before dividing profits.
IF IN DOUBT, SEEK LEGAL ASSISTANCE
If you struggle to navigate the process alone, contact a local family lawyer. Remember that because you are both owners of the property being sold, you are both considered your lawyer’s clients. When dealing with a separation matter, both parties need to give instructions to their lawyer. Your lawyer cannot negotiate or act on your instructions until the exact instructions are received from both parties.
NAVIGATING THE JOURNEY WITH PROFESSIONAL SUPPORT
Divorce or separation is a significant life event, and selling a property during this time can feel overwhelming. However, you don’t have to navigate this journey alone. Engaging professional support, like that of a family lawyer, can provide you with clarity and confidence throughout the process. They can explain your rights, help you understand the legal jargon and guide you through the formalities, ensuring your best interests are looked after.
LOOKING FOR FAMILY LAWYERS ON THE GOLD COAST?
At Ramsden Lawyers, our Gold Coast Family Law division houses not one but three family law Specialists, two accredited by the Queensland Law Society and one by the New South Wales Law Society. This breadth of specialised knowledge guarantees we maintain an exceptionally high quality of work. Our experienced team can advise on even the most complex family law matters, including Binding Financial Agreements, consent orders, mediation and family dispute resolution and de facto and marital property settlements (including property settlements involving international assets).
Family law issues often demand a synergistic approach with other legal fields. To cater to this, our Family Law team on the Gold Coast collaborates closely with other divisions in our firm, including Property, Business, Commercial, and Litigation. This integrated approach ensures our clients benefit from expert input on all facets of their cases, so you can access all the advice you need under one roof.