How Do You Sell a Property If One Partner Refuses?

Unable to reach an agreement on the property division

Where separating couples are unable to agree on the division of assets, the first step is engaging with a mediator to get some assistance with the process. The parties must make a genuine attempt at resolving this prior to applying to the court and mediation is part of that process.

Where parties are unable to resolve their property division or finances at mediation (not common but does happen) they may apply for financial or property orders in the court.

The court process of financial and property orders

The family court has a step-by-step approach to financial and property orders:

1. Orders will only be made on ‘just and equitable” terms according to the Family Law Act;
2. Parties will need to disclose to the court a list of property, valuations and financial history;
3. The court will consider the contributions of each party to the property (direct financial and indirect contributions);
4. Considerations to the effect of any order on the parties (will consider child support and current orders);

Property settlement

Property settlement may include:

• real estate;
• money;
• shareholdings;
• superannuation;
• cars;
• motorbikes;
• jewellery
• inheritances;
• insurance policies;
• investments
• cash (in bank or folding);
• debts

Forcing the sale of a house through a court order

If a party refuses to sell the property, the sale can be forced through a court order. Should this proceed, then an independent valuation will need to be undertaken and a real estate agent will be engaged to sell the property for that value. Where the agent is unable to sell the property within a given time frame, it may be auctioned.

When will the order make an order?

An order for the sale of a property is generally made in the following circumstances:

• where the is no other option to affect a property settlement that is fair and equitable;
• when selling the house won’t affect a parties income;
• when one party is in breach of an order;
• when the party that seeks to retain the house is unable to demonstrate they can refinance the house.

Takeaway

If one party refuses to sell the property, the court can make an order for its sale given it is fair and equitable in the circumstances.

NOTICE: The above is not legal advice and it is recommended that you obtain tailored legal advice related to your own personal circumstances from an Australian legal practitioner.