Resolving Family Law Property Disputes
In our previous articles, we provided details about the process for appointing a Statutory Trustee in Queensland and other states and outlined the benefits, as well as the key actions statutory trustees perform.
In this article we explore how the appointment of a statutory trustee interacts with family law property disputes. Disputes often arise during property settlements between separated couples and a Statutory Trustee is a person or persons appointed by the Court for the purpose of facilitating the sale of real property where there is a dispute between one or more of the co-owners, to aid in the fair and equitable distribution of proceeds.
Property Disputes in Family Law
In family law, a property settlement is a process whereby any assets including real property are divided between two or more parties who had been in a relationship.
A home or real property is often the largest and most valuable asset in a relationship and its very existence (even setting aside any emotional aspects) can often lead to a wide range of contentious points such as:
do the parties both want the property sold
do either of the parties have the ability to refinance and purchase the other’s interest
who will reside in the property, and will that person pay rent or an occupation fee
who will pay any mortgage, rates, water and (in the case of apartments or townhouses) the body corporate levies
who will maintain the property and pay for upkeep or repairs
has a parent (or other third person) guaranteed the loan or contributed to the purchase of the property, how is that interest noted
what is the property worth, whose opinion/valuation is correct
what agent will be appointed (if the property is to be sold)
what sales method/process will be used
who will approve advertising wording and photos
who will provide instructions on the sale to the agent
what lawyer will do the conveyancing, who will provide the instructions
how will the costs of sale including agent commission, marketing fees and legal fees be paid
how are the net funds to be split between the parties
The Court (Federal Circuit and Family Court of Australia) expects that people involved in family law disputes will only make an application to the Court when there is no other readily available means of resolving their dispute (i.e., the parties need to make a genuine effort to resolve the matter first).
As a result, most parties manage to resolve their property (and parenting) disputes without the need of a court intervention. Notwithstanding that, about 50% of our Statutory Trustee appointments are related to family law disputes between former partners (both married and defacto).
Court Orders and Options
As a co-owner you have a fundamental right to apply to the Court to sell a property and realise your interest. Appointing a Statutory Trustee early in the piece may also increase the chances of avoiding a potentially more costly, uncertain and protracted outcome for both parties.
If parties are unable to resolve their dispute over assets, there are various orders that can be sought from either the family court or other courts (depending on which Australian state you are located in).
When there are no parenting disputes (or no children) and the only asset in dispute is the house/ real property, it may be beneficial to appoint a Statutory Trustee to quickly resolve the matter and change the discussion from all the questions outlined above to simply who receives what amount or what portion of the net proceeds once the Property has been sold.
The appointment process for a Statutory Trustee, whilst involving a court, can take significantly shorter time than a full set of hearings of a family law property dispute.
How can QSAS help?
Wherever you’re located, the QSAS team can help you find the right solution to resolve your (or your client’s) family law property dispute. Contact us today for a confidential, no-obligation consultation to find out more about the options that might be available.