Question:

My ex is not paying enough to cover the repayments on our house and the mortgage has now fallen behind.  Can I legally force them to sell our property?  We have no children reliant on living in the family home.

 

Answer:

Obviously, the current situation isn’t desirable as the further you fall into arrears, the more likely it is that the financier will force a sale of the property which can mean a less favourable sale price. Also, your credit rating is being affected if your name is on the mortgage.

 

Separated or divorced?

If you are separated, you should be moving towards formalising a split in your property and finances. This will determine how you will split your assets and may result in the two of you agreeing to sell the home or one or other of you buying the other out and taking on sole responsibility for the mortgage.

If you are already divorced, you need to commence an application to for a property settlement within one year of the date your divorce order was granted.

If you are living under the same roof, you could still be considered 'separated' and could look at lodging an application for divorce, a  property settlement and financial independence from each other.

 

Seek legal advice

It’s not possible to give specific advice without knowing your specific circumstances. I would advise you to see a lawyer for clarification on the legal process if you feel forcing a sale is the best course of action.

You could approach Legal Aid, a Community Legal Centre or you could find a lawyer offering a free consultation. You should also consider getting expert financial advice before taking any legal action.

 

Financial options

Approach a financial expert or visit your bank to discuss mortgage restructuring that may reduce costs and make the repayments more manageable. Some financial institutions have various ways of assisting clients in financial hardship.

It is better to face the looming financial crisis rather than burying your head in the ground and hoping it will rectify itself. It won't.

 

Forcing the sale

You may be able to approach the court for interim orders to force the sale of the house.

If granted, the orders would allow for the property to be sold, and would also instruct a timeframe within which it should be sold. The net proceeds of the sale would be then become part of the property pool and available to split between you.

 

What should you do now?

Keep good records of the amounts you are paying towards the upkeep of the property and the mortgage.

Document your ex's contributions, any undertakings they made to meet costs and the instances when they have failed to meet their promises to pay.  Document in as much detail as possible the events that have taken place to get you into your current financial situation.

This information probably won’t all be presented if you were to pursue an order through the court but it would help your lawyer to build a chronology of events and build a solid case theory.

 

Published by Divorce Resource

The information provided in this post is general in nature and must not be construed as either legal or financial advice. You are advised to seek advice specific to your circumstances from a registered expert.