Family Law – Splitting The Family Home – Splitting the Profits!

My wife has left the family home and we have been living apart for 6 months. The idea was for me to renovate the house and then sell the property each getting half the proceeds.

I have now finished all of the renovations but she has decided that she is happy in her rented accommodation and wants us to keep the property. I’m out of pocket and now need to sell, is there any way around this?

Under the Family Law Act, which governs the division of matrimonial property, the Family Court has a duty to make orders that will end the financial relationship between the parties.

From your question it appears that your wife wishes to retain her interest in the family property indefinitely, by refusing to sell the property. Assuming the property, is held jointly by you and your wife, you are unable to sell the property without your wife signing the Contract for Sale and Transfer.

However, you do have the option of making a property application to the Family Court, seeking an order that the property be sold and that your wife sign the Contract for Sale and transfer.

This application should also seek an order on how the proceeds from the sale of the property are to be divided, which would allow you to be reimbursed from the money you have spent on renovations, as well as any mortgage payments if you have been paying the mortgage since your wife left the family home.

The Court will also be able to finally determine the financial relationship between you, other than the family home such as motor vehicles, money in bank accounts, shares, superannuation and other property.

When deciding to make a property order the Court will consider the following:

  • The financial contributions made directly or indirectly by you and your wife to the acquisition, conservation or improvement of any property;
  • Non-financial contributions by you and your wife to the acquisition, conservation or improvement of any property;
  • The contributions of you and your wife to the welfare of the family, including any contribution as homemaker or parent; and
  • Any effect the proposed order will have upon the earning capacity of you and your wife;

It is important to be aware that the Family Law Act requires parties to attempt to resolve any disputes in relation to the division of property, by conciliation or mediation with court proceedings a last resort option. To discuss how to access these dispute resolutions procedures and what is involved in commencing court proceeding you need to seek advice form a lawyer experienced and well-practiced in Family Law.

If you are experiencing the breakdown of your marriage or de facto relationship and need advice on a property division, call  Barwick Boitano today on (02) 9630 0444 or email on fjb@bblawyers.com for an appointment.

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