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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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In the event of a separation between two spouses and one

Customer Question

In the event of a separation between two spouses and one spouse has tried but failed to secure a loan to buy the other out of the family home then what happens next - the spouse currently residing at the property who failed to secure a buy out loan - has now refused to put the house on the market. How does the other go about getting the house on the market and moving forward with a settlement?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Patrick H. replied 1 year ago.

IF the parties are not able or willing to take out a loan to buy out the other party then either the parties would have to reach some other agreement, or the property will need to be sold so that the proceeds can then be apportioned appropriately.

If the parties are joint owners of the property, or the person in occupation of the property refuses to vacate or otherwise cooperate with selling the property then the party wishing to force the sale will need a court order to force the other parties cooperation. If this is your situation, I would strongly recommend engaging a family lawyer to negotiate or if necessary bring the matter before the family court.

The reality is that if there are insufficient assets to allow one party ownership of the house in total, the court will usually order the property be sold so that both parties can receive their fair share of the asset pool. That said, there are some exceptional circumstances where the court will allow a party to remain in occupation for a considerable period before forcing the sale, such as where there are children of the relationship, so it is sometimes the case that the non custodial parent will not receive their share of the home until the children are grown up. Each case turns on its particular facts, however, so only a fully briefed lawyer can give you firm advice as to whether this is a risk for you.

I trust the above asissts.