What happens to the family home if we divorce?

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Separation and divorce are difficult on many levels. Often, the family home is a joint asset that has the most financial and emotional baggage attached to it. And it’s an asset that needs to be split.  

There are a range of options for separating couples to choose from, but there is no one-size-fits-all approach. The best decision for one family may be completely different for another. 

We want to ease this difficult process as much as possible. Here’s an overview of what you need to know when you’re faced with what to do with the family home in the event of a relationship breakdown.  

Start the decision-making process 

In the majority of cases, the couple will own the house under a joint tenancy contract, meaning they have equal ownership of the property.  

The couple need to decide whether they’re going to either: 

  • Sell the house and start anew, or 
  • Transfer the property to one party 

If transfer is the chosen option, they’ll need to arrange a binding financial agreement (BFA) or file consent orders with the Family Court. What’s the difference between the two? 

A BFA is prepared by one party and the other must have an independent solicitor sign off. It’s not filed by the court, but it states the intention between the parties and the Deed. 

Consent orders are prepared by a solicitor and filed with the Family Court. You can do it yourself online but it’s very difficult. The court order ensures the parties come to a resolution fairly. 

Transferring property title 

If the decision has been made for one party to continue living in the family home, the other party needs to buy them out and a title transfer needs to occur. 

This is where your Property Conveyancer comes into the picture. 

Family court orders and BFA’s are not essential for this process, but they help give both parties clarity in their obligations. The court orders and BFA’s can also cover off other financial splits and distribution of belongings or assets such as cars. 

Under the Family Law Act 1975, if the property is transferred in accordance with a binding financial agreement or a court order, the receiving party is exempt from paying stamp duty.  

The property can only be transferred to: 

  • Either of the partners in the relationship 
  • A child or children of either partner 
  • A trustee for the child, or children of either partner. 

Now that one party is taking over the responsibility of the property, they also take over the mortgage (if there is one). They will need to discharge their ex-partner from the mortgage and refinance. 

Once the family lawyers have set out the binding financial agreement or court order, the conveyancers come in to take care of the transfer of ownership.  

Talk to your Property Conveyancer 

Both parties will need to work with their own Conveyancer, who acts on their behalf in the transaction. Your Property Conveyancer can help you find the right path by explaining all the options available to you. 

Each family’s circumstances are unique. Time and consideration need to be taken when making big decisions like transferring or selling the family home during a divorce. 

We can help you begin the next chapter of your life with confidence. Call us to get started – 4910 0522 

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