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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42333
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Queensland: I own a house as tenants-in-common with my former

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Queensland: I own a house as tenants-in-common with my former de facto. The relationship broke down in late 2009 and she has been living in the house alone for the past 12 months. I have continued paying my half of the mortgage. I want my name off the mortgage, but she can't get finance to pay me out. I can't get her to agree to sell the property. Is an application under s38(1) Property Law Act (Qld) my best option to force a sale? Who would be appointed as trustee? What would it cost me?
Good Afternoon

If 2 years had not passed since the separation I would suggest going to the court under the defacto laws of QLD.

As 2 years have passed since the separation you have no choice but to proceed under section 38 for a trustee to be appointed for sale.

The cost would have to be paid by both of you unless the court orders that she pay the costs for refusing to sell.

Supreme Court actions are costly if it does not settle and has to go to a full hearing it could cost anything up to $50,000.00

I hope this is of assistance and if so please click on the accept button.
Customer: replied 4 years ago.

Thanks for your response.


I made a mistake in the dates - our relationship broke down in late 2010, then we were separated but living in the house together for a few months, then I moved out and she's been in the house on her own for all of 2011. So I guess that means that I could "go to court under the de facto laws of Qld"? Could you please direct me to the appropriate section/s of the Family Law Act? Where can I find more information? Is there anything I can do to progress this without seeing a lawyer? (I think that if I can set out for her exactly what steps I can take to force the sale, she might agree).


In case I'm too late and have to apply under s38, could you please answer my original question about who would be appointed as trustee? Do I need to propose someone or does the Public Trustee do this sort of thing?


Thanks again for your time.

Good Evening

If that is the case the best place is the Federal magistrates court and seek and order for the same and that the proceeds be split in the shares you decide.

You would be doing a property settlement.

You are covered under section 4aa of the family law Act as defactos.

It is a split of property and you would seek an order that the house be sold.

The court and law apply the following 4 steps

Step 1: Determine what the assets are and their value

This will include all assets and their value as at the day that you are dividing them. It does not matter whose name the assets are in, they will form part of the matrimonial pool. Superannuation entitlements are also included.

Step 2: Determine what contributions you and your spouse made towards the assets.

This includes a consideration of both financial and non-financial contributions. Consideration is given to what assets each of you brought into the marriage as well. The weight given to your initial contribution will be dependent upon the length of your relationship. The longer the relationship the less weight given to the initial contribution.

Step 3: What are each of your future needs.

Consideration is given to your respective ages, your comparitive income earning capacity as well as other factors.

If these things don't balance equally for each spouse, then an adjustment is made in the percentages.

Step 4: Make an order that is just and equitable between both spouses

You would look at how to divide the assets to achieve the percentage division arrived at after the first three steps. Such as is the house sold, or retained by one spouse who pays the other out, does there need to be a superannuation splitting order, etc

It is not possible to provide you with a percentage range of expected property settlement without a proper consideration of all the factors in each of the four steps set out. I recommend that you make an appointment with an accredited family law specialist for a one to two hour consultation as they will then be able to provide you with initial advice of the percentage split to expect.

You do not need the public trustee. The order is made that it be placed for sale and she has to comply, If not the court can sign on her behalf.

I hope this is of assistance and if so please click on the accept button.
Customer: replied 4 years ago.

That is really helpful, thanks. One last thing: do we need to go through mediation before I can apply for property orders?

Good Afternoon

You have to show you have tried to reach an agreement.

Letters between you is enough. There is no rule that says you have to go to mediation.

I hope this is of assistance and if so please click on the accept button.
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