Dividing your property when separating from your ex
Break-ups are tough. And besides the emotional toll they take, you also have to make other difficult decisions like dividing assets and selling your house. Here, we’ll walk you through the steps and options of selling your house, and put you in contact with trusted experts that can help you – even if your ex doesn’t want to sell.
How to sell your house – everything you need to know
When you feel like your life is in upheaval, the last thing you want to worry about is how you’re going to sell your house.
How you proceed with selling your house after separation will come down to a variety of factors including the relationship itself, the level of conflict between you and whether you can agree about what you do with the property. And what if your ex doesn’t want to – or even refuses to move out?
What to know before selling
Before you begin the process of selling your house, you should do the following:
- Get your finances in order (you can get the support of a mortgage broker that has financial planning experience)
- Confirm the amount owed on the mortgage
- Make sure your home loan is being paid
- If the mortgage isn’t getting paid, speak to your bank about financial hardship
- Determine the property’s market value
- Work out if the market value minus mortgage (equity in the home) equals enough money to pay off the outstanding mortgage
- If the property can be sold for more than what it will cost to pay down the mortgage, then you need to determine how what’s left over from the agent’s commissions and rates (the profit) will be split between the two owners
- Act quickly and seek legal advice
Knowledge is power and also saves you time and money. Doing these things will protect you and help you sell your house as fast as possible – guided and supported by professionals along the way.
Selling real estate during a divorce or de facto separation
There are two ways a property is legally sold:
- Through agreement and negotiation of both owners (a written Financial Agreement)
- via court orders/consent orders
Once you have these covered, there are a few very important things that you need to know about selling your house:
- If both you and your ex are on the title, then both of you need to sign the contract of sale.
- The listing agent can’t list your house for sale unless you both agree in writing for them to list the house for sale.
The moment a buyer signs the contract, go to your bank’s website and complete
the discharge of the mortgage application – it can take up to 28 days for banks
to be ready for settlement.
- You will need a conveyancing solicitor to liaise with the buyer’s solicitor
- Your conveyancing solicitor will provide you with Transfer documents. You both need to sign these to allow the property to be legally transferred to the buyer’s name
Make sure you quickly complete and return all documents and questionnaires your
conveyancing solicitor gives you. Some of the things you may need to sign
- Discharge of Mortgage – if you have any mortgages over the property
- Transfer documents to allow the property to be legally transferred into your name at settlement
- Client Documents – the initially written questionnaire and accompanying documents your solicitor will give you
- Both parties will need to agree on how much money each receives after the sale
- An Authority signed by both of you as to how the proceeds of the sale will be divided between you
How to determine the profit split
It’s not uncommon for some people to struggle with the split of funds at
settlement. In this situation, the best idea is to get independent legal advice.
Here’s what can determine the profit split:
- Both parties’ financial contributions toward the home’s initial purchase (eg. payment of deposit, use of first home buyers grant).
- If one party owned the house before the start of the relationship. And if so, what have been the other’s financial contributions towards the mortgage and extra costs?
- Each party’s non-financial contributions. For example, labour to renovate
- The parties’ long-term future needs. For instance, will one person have any children living with them until they turn 18? Will there be any significant difference in the potential earnings of each party?
- Unpaid debts from the marriage that would need to be settled with proceeds from the sale of the house (for example, mortgage or credit cards).
Alternative options to selling
- Buy out your ex
- Agree to continue being co-owners of the property and rent it out. However, we don’t advise this route. You should seek the help of a lawyer that can explain the issues that can arise from doing this.
Can I sell our house without my ex’s consent?
During a separation, there can be a lot of tension, especially if you and your ex-partner have different opinions about what to do with the house.
But if all negotiations have failed, and mediation hasn’t resulted in you both reaching an agreement, in Australia, you can force your ex to sell the house through a court order.
We can help. Please get in touch with one of our experienced family law experts.
How to force my ex to sell the house fast?
If your ex refuses to sign the transfer papers needed to sell the house, your only option in Australia is to seek legal advice and:
- obtain their written consent
- enter into a Financial Agreement that provides that the house is to be sold
- enter into Consent Orders/apply to the court for an Order to sell the house
Should I apply for a protection order to force my ex out of our house?
If your life is in immediate danger, call 000. If you are the victim of domestic abuse (physical/psychological/verbal/coercion/controlling behaviour) call 1800 737 732 (1800RESPECT), which is the number for the National Domestic Family and Sexual Violence Counselling Service for Australia.
If you are experiencing domestic violence, you can apply for a domestic violence protection order from your local Magistrates Court, an order issued by the court to prevent acts of domestic violence.
How is debt dealt with after divorce or separation?
If you have debt after separation, the first step is to add up the value of all the assets and subtract the value of all debt. Reach out to one of our trusted mortgage brokers, financial planners or family lawyers that can advise you.
Be aware that there may be debt you haven’t considered relevant, such as vehicle finance, business or personal loans, or conditional loans from parents.
Can I get anything if my partner worked and paid the mortgage while I stayed home?
Yes, homemaking and parenting contributions are just as important as your ex being the breadwinner.
If none of the property is in my name, am I entitled to anything?
Yes. To protect your interests you should urgently have a caveat lodged over the title of the property to ensure it cannot be sold or further encumbered without your written consent. Seek the advice of a lawyer as soon as possible.
Please note that depending on which state you are in you may not be able to lodge a caveat in the old-fashioned way (eg. QLD), but may only have the option of lodging it using a solicitor’s access to an electronic lodgment platform (eg. VIC).
What documents should I take with me when seeing a lawyer about property matters?
Primarily, you should take a list of your and your ex’s sole and joint assets, liabilities and superannuation.
You should also list down:
- the amounts and dates of any monetary gifts or inheritances either of you received
- each of your incomes for the last 3 years
- the names of any businesses and whether they are profitable
- if there are children (and any special needs the children have), the children’s ages and living arrangements
- a written list of your combined monthly expenses
- a list of your expected sole monthly expenses if you were to live alone (with or without the children)