We’re fierce advocates of striving to obtain a property settlement by consent and without going to Court. We feel the best way to make the property settlement legally binding is through a Consent Order – it’s an Order of the Court, but no-one goes to Court.
With the substance and clauses of the Consent Order, the old adage ‘the Devil’s in the detail’, is more than apt.
But what does this mean? What are the details you should be considering, looking out for, and making sure are being covered in the Consent Orders?
We intend to look into this with you, over a multi-part series of discussions. Today, let’s consider some of the important ones when it comes to transferring a house —
House transfer?
- There’s usually a home either being transferred to one party, or being sold (we’ll cover the ‘being sold’ another time). If it is to be transferred to one party, make sure the house has the correct legal/Lot on Plan description in the Consent Orders clauses.
- Obtain a Current Title search for the home – this has relevant and important details, including nature of ownership and correct description.
- Is there a joint mortgage? If so, has the party who is taking over the mortgage made enquiries about their borrowing capacity, and obtained some form of conditional pre-approval to refinance the mortgage into their name solely? If not, this is a must do before signing those Consent Orders!
- If the other party is getting some money in consideration for transferring the house over, make sure as well there is pre-approval to borrow that consideration amount too, if the plan is indeed to refinance the mortgage PLUS borrow extra money to pay that party out.
- Regardless of the above, it is always a good idea to make sure there are clauses that set out what is to happen if the mortgage refinance and/or payment to the other party falls over – that is almost always a contingency for the home to be sold, with specific details about the sale process, sale price, and division of proceeds of sale (which we’ll cover another time).
What about time frames?
- There almost always needs to be deadlines to do something. In the case of the above examples, such as transferring a house, refinancing a mortgage and paying someone, it is usual to allow 1 to 3 months from the date of the Orders being made by the Court. These should all occur ‘contemporaneously’ (at the same time). These should be expressed in terms of days – for example, within 28 days, or 42 days, or 56 days – it is wise to have these timeframes in lots of seven days. Why? The timeframes run from the date of the Order being made by the Court. The Court doesn’t make Orders on the weekend. If the timeframes are in anything other than lots of 7 days, you run the risk of a deadline falling on a weekend, which won’t work practically for a house transfer.
- When considering timeframes, it is a good idea to consult with your lender or mortgage broker and ask them how much time you may need to finalise this process, and consider adopting that timeframe.
Some other things to consider
- What will be the arrangements for who is living in the house, and payment of mortgage and house related expenses, pending the transfer of ownership? There should be clauses covering those details, including responsibility for payment of mortgage, insurance and so on.
- If it is intended that one of the parties is to live in the home, then this should be set out as them having ‘exclusive occupation’, along with covering what responsibilities they will assume.
- Are there items in the home that the other party will need to collect as part of the property settlement (such as furniture, personal effects, tools, memorabilia and so on)? It is better to list those items in the clauses, along with setting out a day, time and method for collection – this mitigates the potential for disputes when it comes time to retrieve the items.
The above discussion covers only some of the things you need to consider and implement.
Please carefully note – this is general information only and not intended nor to be construed as legal advice – if you need help with making sure your Orders are done right, get in touch with our Family Law team.
Next time, join us for a discussion on some of the important things to cover when it comes to superannuation splitting.
