Forced sale of home

Q. Can I apply to the Family Court for an order to sell the family home when my ex is not paying the mortgage and not co-operating on selling it?

A.  Yes. Whether the Court makes an Order will depend on whether the Court considers it proper in all the circumstances to make the Order.

Case Example:

In one recent case, the wife sought an order that the former family home be sold with any remaining balance, after the mortgage was discharged,  to be held in a controlled money account until further orders.

The wife wanted the sale immediately in its current condition to avoid the lender/mortgagee obtaining an order for possession and selling the property under its powers for sale.

The wife also sought orders restraining the husband from interfering with the sale of the property and from entering or remaining upon the property.

The mortgage repayments had not been made for over a year and the home loan account was in arrears by nearly $9,000.

The Court made the Orders to sell the house, pay the mortgage and the balance of funds be held by the wife’s solicitor in a controlled moneys account pending further order.

As the husband had not cooperated with the wife to facilitate a sale despite agreeing that the former family home needed to be sold and was not making any mortgage repayments, the Court ordered an injunction restraining the husband from interfering with the sale of the property and from entering or remaining upon the property.

The Court also ordered that the wife be appointed as trustee for the sale of the former family home. The wife gave an undertaking to act diligently in her capacity as trustee and observe her obligations to sell the property for the best price attainable.

If you have any questions on the sale of a former home or other family law related issues, please contact Kathy Chase of Pittwater Family Lawyers at: (02) 9918 6565 or 0418 285 307 or pittwaterfamilylawyers@gmail.com