Divorce is the second most stressful life event a person could experience, after the death of a spouse. On top of dealing with emotional turmoil, it’s likely that you also need to make decisions on major lifestyle changes. Here is some informative support to help things go as smoothly as possible during what could be a stressful and difficult time.
When separating or divorcing, the most important thing to do before you discuss property splits is to get legal advice from a family lawyer. When an agreement is reached between the parties for one party to buy out the other, get consent orders issued by the Family Court. Doing it this way means that the party buying out the other only pays a nominal ($20) stamp duty instead of a much higher stamp duty based on the value of the property.
A key thing you need to decide? Where you will live. Possible scenarios include:
- Selling a co-owned family home.
- Buying out the other party to keep the property.
- Selling out to the other party and living somewhere else.
Selling a co-owned family home
How smoothly the property sale proceeds depends on several factors:
- If both parties agree or disagree on whether to sell the property,
- How amicable or hostile each party feels towards each other, and
- Whether both parties are well informed about everything around the sale of the property that could affect their interests.
Alongside self-care priorities like processing highly charged feelings in healthy ways and leaning on kindred spirits for support, there are five important practical things to address to make the property sale process as smooth and easy as possible.
Both parties need to:
#1 Provide the same instructions to their solicitor or conveyancer.
#2 Agree on the sale price.
#3 Complete client documents from their solicitor/conveyancer.
#4 Sign transfer paperwork, including Discharge of Mortgage papers if applicable.
#5 Agree on the percentage split of funds at settlement.
If there is no agreement, the matter may escalate into a court order (which incurs its own costs and will also delay the fund distribution process).
It can be hard to see the big picture when locked in a potentially tense and intense situation, but it is there. The big picture is that the faster you can obtain closure and put the past behind you, the sooner you can start to rebuild a new and happier life.
What should you do if there is only partial agreement and the property is sold, but both parties do not agree on the split? The parties will need to open a joint “two-to-sign” account, for the funds to be held in the following settlement until an agreement can be reached. Alternatively, they may agree for either party’s family lawyer to hold the funds pending an agreement.
Buying out the other party
One party may want to buy out the other party and continue to stay in the property, but they may not have that choice if they do not have the financial capacity to do so.
What’s involved if you want to buy out the other party:
- Get the bank to do a valuation of the property. Please note that a bank valuation for property (by a professional, qualified valuer) is usually lower than the local real estate agent’s estimate (or price appraisal) of the market value.
- Know what your equity on the property is – this could be evidenced by banking records of repayments you have made for the property.
- Check if you have enough funds to buy out the other party – you may need to share information on what you have in savings.
- If you need a loan to buy over the other party, the bank may not approve of the loan if their valuation is too low. You may like to consider a mortgage broker who can get you valuations from more than one lending institution.
Selling out to the other party
This works only if the other party has the financial capacity to buy you out. If they do not, your share of the property could be sold to someone else. For example, to another family member of the other party, with that party’s consent.
How KDD Conveyancing can help with property sale after separation/ divorce
Take advantage of our 30+ years’ experience in the Perth property settlement market to avoid potential costly pitfalls. Before you sign any contracts for a change in ownership, we can provide expert advice by reviewing your contract (which may be lengthy and technical) and explaining the impact that each section has on you. This helps you make an educated and informed decision on whether to sign the contract.
Let our experienced property conveyancing practitioners at KDD Conveyancing Perth assist you. Our friendly and knowledgeable conveyancers know the settlement process well in Western Australia. Contact KDD on (08) 9296 8717 or by email today.
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