Sale of the matrimonial home

Sale of the matrimonial home and other property ordered by
way of an interim property order.

You may be seeking a final family law property settlement with
your former partner or it may be that you are involved in a family aw action where
final property orders are being sought.

Some former couples are able to reach agreement fairly promptly
as to how their property is to be divided. If that is your situation, then it
should be possible to proceed to obtaining final property orders fairly
promptly without ever actually going to court.  

If however it is likely going to take some time before final
property orders can be issued, you may need to consider the sale of the matrimonial
home as an interim measure in order to preserve the value of the net asset pool
that can be divided.

Of course, where one party wishes to retain the property as
part of final orders, the sale of the matrimonial home will not be appropriate-
unless of course that party cannot afford to refinance the mortgage over the
home.    

Unfortunately, it sometimes happens that a party is
unwilling to recognise that he or she is not in a position to obtain refinancing
approval from a bank or financial institution.  If mortgage repayments are not being made at
all or in full, the increasing debt position for the parties can obviously
seriously prejudice the outcome for each of the parties. However, the sale of
the matrimonial home as an interim measure pending the issue of final orders
for property division can assist in preserving the value of the asset pool.

If
you are having issues regards the sale of the matrimonial home in a family law property
settlement,  contact our experienced
Brisbane divorce lawyers or our divorce lawyers North Brisbane.
 We
can assist you in all areas of family law, including regards reaching a final family
law property settlement, obtaining interim property orders, maintenance claims
and child custody arrangements.

We
ensure that you are advised regards likely outcomes for your particular
circumstances. With that knowledge, you are able to make informed decisions ,
retaining control over how your family law issue is resolved. Please also feel
free to read on for further information right now………

In Mackerith & Mackerith [2018] FCCA 3853 (14 November 2018), the Federal Circuit Court made interim orders for the sale of the matrimonial home as well as for sale of another property which the husband had wished to retain as part of final orders.  

The application had been brought by the wife seeking
orders for sale of the matrimonial home and other property. The parties had
defaulted on their loans from Westpac Banking Corporation and the Wife sought orders
for sale in order to avoid a forced sale by the bank. The Wife sought to preserve
the parties’ net assets whereas She maintained that the Husband in seeking to
retain certain the property was risking her financial position by not paying
his share of the mortgage repayments.

The
Husband had no income from personal exertion income. He was currently unable to
work and his future earning capacity was uncertain. The Husband had raised only
the possibility of a loan being made available to him from his elderly mother.
He could only assert that he had had been informed by a mortgage broker that he
would obtain approval for the further finance he wold require in order to refinance
the property that he wanted to retain. He did not provide evidence of finance
approval having actually been given.

The Court said that it was difficult to see that the Husband would be
able to obtain a loan given that he was unable to work due to a psychological
condition and physical injuries that he claimed to have suffered. On the other
hand, the Court said that a sale of the relevant property will avoid a fire
sale [by the bank].

In these circumstances, the Court said that it was appropriate to make
an order for sale of the property that the Husband had wanted to retain as well
as the order for sale of the matrimonial home.

Contact our divorce lawyers Brisbane or divorce lawyers Brisbane
Northside
 for advice concerning your family law property settlement issues,
whether including sale of the matrimonial home or otherwise.   We can assist you to obtain final orders
for the division of property. Our goal is to assist our clients to reach an amicable
agreement with their former partner without the need to go to Court. If however
it becomes necessary to institute a legal action seeking final property orders,
we have the experience to represent you at Court.

The information set out in this blog is not a substitute for
legal advice. We recommend that you obtain advice tailored to your
particular circumstances from our Brisbane divorce lawyers or our divorce
lawyersBrisbane Northside.