Sometimes, when things go south, you may find yourself surrounded by reminders of a past time. For example, if you and your partner bought a house together but things have changed, you might be facing the question of how to sell a house when one partner refuses.
If you want to sell such a jointly-owned house but your ex-partner refuses, there are ways to get things done. Seek legal advice from family lawyers as a way to start the process. Additionally, we also have a few pointers on mistakes to avoid when selling your home. These will help you get you started on the path to solving this problem. One of them is to go the legal route by using a court order.
Things to do before before going to court
When one partner owns the house in Australia, it might be more straightforward. But when the property is co-owned, and the dispute can’t be settled, you may have to take it to court. You can get a partner to sell the house after you have:
- Had discussions with both lawyers without a common resolution
- Held mediations with an authorised family dispute centre to no avail, or
- Failed to mutually agree with your partner on draft orders in private.
The Family Laws of Australia are unbiased and one of the most accommodating in the settlement of property disputes in the event of separation or divorce. Your best option at this time will be to approach the Federal Circuit and Family Court and get an order to effect the sale.
However, you might want to make sure that certain conditions are met before the court can order the sale. This is based on the family law act of Australia.
How the court can help force your partner to sell
The judge can give the order to engage a property agent to determine how much the property is worth. Next, the judge can give a stipulated time for the house to be sold at the agreed value.
Usually, control of the sale of the house is handed over to the other party seeking to sell, while proceeds from the sale will be shared between both partners of the de-facto relationship at the discretion of the family court.
However, the following conditions must be met before the Court issues an order to sell:
- Safety of Your Partner’s Income: The court must prove beyond reasonable doubt that the safety of your partner’s income will not be affected by the intended sale of the house. You might want to renegotiate if the house is perhaps your partner’s only source of income.
- Breach of Order: If the court establishes that your partner has been in breach of order(s) of your divorce settlement, it could inspire the judge to effect an order for the sale of the house as a punitive measure through an independent property agent.
- Inability to Buy You Out: If your partner shares ownership of the house title with you, there will be a need to buy you out once you have decided to sell. Once your partner is not able to fulfil this obligation, the judge will likely issue an order to sell.
- Inability to Refinance the House: When one party is unable to prove an ability to refinance the house in mortgages, debt settlements, etc., the judge will most likely issue an order to sell, to lessen the burden on you obviously.
- Absence of Fair and Equitable Settlement: When all avenues and factors in a property settlement dispute have been exhausted in all circumstances, the court will most likely order the sale of the house based on fairness and equity to both parties.
FAQs:
Who gets the larger share of property settlements in Australia?
In Australia, there is no preference as to which of the partners must have a greater share of property settlements. The Court takes into consideration all factors within the ambits of the law to decide who keeps and who forfeits what.
Is the court the only option to help me convince my partner to sell our house?
The best way to get your partner to agree to a house sale after separation or divorce is through personal agreement, family dispute resolution practitioner or family law mediation. This can help bring your partner up to speed on the need to agree to a sale for your mutual benefit. The court should be your last option when all other legal avenues have failed.
Must I be married to be entitled to a legal property settlement?
The Family Laws of Australia recognize both de facto and married couples. By law, both as recognized, are entitled to fair hearings and equal considerations in separation or divorce property settlements.
