Close this search box.
(07) 3231 2444
Close this search box.
09 October 2023

How do I keep the house? (part two)

Authored by: Hannah Flanderka
In this week’s video, CGW family lawyer Hannah Flanderka talks about practical considerations that might be relevant to you if you have reached an agreement with your ex about keeping the house. In this second part, Hannah focuses on the process of transferring the property into your sole name.

Video transcript

Hello again. My name is Hannah Flanderka and I am a lawyer in the family law team here at Cooper Grace Ward. This video is part two of a two part series that looks at practical factors to consider when you’re seeking to retain your home in a property settlement. If you didn’t get a chance to have a look at part one, you can track it down on one of our social media platforms, including Instagram. But otherwise, let’s jump into part two, which basically explores one of the many factors you should consider when drafting some consent orders for your property settlement.

Borrowing capacity

If you’ve agreed that you will retain the home subject to refinancing your mortgage into your sole name and paying your spouse a cash settlement sum, then it’s really important that you speak to your mortgage broker, bank or financial advisor to assess what your likely borrowing capacity is going to be. That is, unless there’s some other sample of cash that’s available in the property pool that you can then use to pay out your spouse. It’s very likely that you will need to borrow some extra funds from your bank to do so. So, presuming that you’ve agreed on all those issues and now you’re in the phase of drafting your consent orders, what’s next?

What to include in a draft consent order

The draft consent order should include what’s called a settlement date, which is basically the date by which you should have refinanced the mortgage into your sole name and paid your spouse their settlement sum in exchange for the property being transferred into your sole name. For example, the settlement date may be 30 days after the date that the orders are published by the court. Or it may be that you need a bit of a longer period because, for example, the bank requires 45 days or some other longer period to be ready for settlement. It’s very important to make these inquiries early and before agreeing to the settlement date period, drafting in the consent orders to ensure that you won’t run into any issues in terms of compliance with those orders once they are made. The critical reason that this is so important is really because the standard position that the Court expects and usually your lender as well, is that if you for some reason have not been able to comply with the settlement date, then the house is meant to be listed for sale, which means that you have to go through the process of selling the house in the event of the default rather then being able to retain the property. And that will be triggered when you’ve defaulted for example, by being unable to refinance the mortgage into your sole name or being unable to pay out your spouse at the same time. You should also consider including some mutual protections for both parties in the consent orders, such as, for example, adding a clause that states if one party’s being a bit slack, for lack of a better word, in executing paperwork on time, then the court registry manager will be at liberty to execute that document on their behalf, essentially. And another very important clause that should also be included is an indemnity, which provides that the person who’s receiving the house will essentially indemnify the person who’s transferred the house to them against any debts associated to that property.

After considering this video, if you have any questions about property settlement or family law matters in general, please do not hesitate to contact me or another member of our team at Cooper Grace Ward.

Like this article? Share it via:

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

Stay up to date with CGW

Subscribe to our interest lists to receive legal alerts, articles, event invitations and offers.

Key contacts

Justine Woods
Leeann Murphy
Special Counsel
Craig Turvey
Special Counsel

Areas of expertise

Read next