Can You Be Forced to Sell Your House After Separation in Australia?

When couples divorce or separate, a common concern is how property will be divided among the ex-partners. Often, ownership of the family house can become a contentious issue.

In this article, our family lawyers give an overview of the property settlement process after separation and answer the question: can you be forced to sell your house after separation in Australia?


How Is Property Divided After A Separation?

When a couple separates, it is ideal for them to create an arrangement outlining how assets, financial resources and liabilities will be split between them moving forwards. An agreement between the partners can be formalised as a court order (or consent order) that both parties are legally bound to follow.

If the separating partners are unable to come to an agreement amongst themselves, they can turn to the Family Court for assistance. The Family Court will begin by evaluating the ‘property pool’ to be divided, which can include items such as:

  • Real estate (whether owned independently or jointly)
  • Cars
  • Business interests
  • Investments
  • Inherited assets
  • Superannuation

Debts will also be taken into account.

The financial significance of how this property is divided means that if you are considering separation or are already in the process of separation, it is important to get legal advice immediately.


Who Receives What In A Property Settlement?

When the court determines how property will be divided during a property settlement, there is no one-size-fits-all approach.

The court instead considers a number of factors, primarily the contribution of each party to the property pool and relationship. This includes factors such as each partners’:

  • Income
  • Savings
  • Gifts
  • Contributions as a parent and homemaker
  • Improvements to property
  • Property owned prior to the relationship

The court will also consider other factors like:

  • Future earning potential of each partner
  • Care and financial support of children
  • The length of the relationship

The court then determines how the property can be divided in a manner that is fair and reasonable. A common question our lawyers receive in regards to this property division is: can my ex-partner be forced to sell their house during separation in Australia?


Can I Force My Ex-partner To Sell The House If They Don’t Want To?

If your ex-partner refuses to sell the house during your negotiations, you can petition the Family Court to intervene and force the sale of the house as part of a property settlement.

In fact, this court process is the only way you can be forced to sell your house during a separation in Australia.

The house will be independently valued, and a real estate agent appointed by the court to sell the house for that value. If the court does order the house to be sold, they will also stipulate a timeframe for the sale.

Typically, the court is likely to order the sale of a property when the following conditions apply:

  • If there is no other way to effect a property settlement that is just and equitable
  • If one party is in default of a Court Order.
  • Selling the house does not affect either party’s ability to earn income
  • The party trying to keep the house cannot demonstrate their ability to refinance the property’s debt by themselves

If these circumstances are met, the court can make an Order placing control of the property’s sale with the party who is willing to sell, and the other party will be forced to sell their house during separation in Australia.


Need Help With Property Settlement After A Separation?

If you are going through a separation or negotiating a property settlement, our experienced family lawyers can work with you to ensure the best possible outcome. We have over 30 years’ experience dealing with property settlements, as well as all issues of divorce and spousal maintenance. Our lawyers are familiar with situations involving people being forced to sell their house during a separation in Australia, and can assist with these matters. Please contact us to make an appointment for an initial telephone call. You can also call us to speak to one of our Brisbane specialist family lawyers (07) 3144 1641 or one of our Gold Coast specialist family lawyers (07) 5526 3646.