A common question regarding property settlement is who is to be held responsible for outgoing costs associated with the former matrimonial home, pending sale or finalisation of a property transfer into a sole name. Here is an example of a Consent Orders Fixed fee Service that could be used in such a situation:
“As a condition of the sale, the wife shall be entitled to occupy the property to the exclusion of her husband until the sale is completed, as long as she maintains the property in a clean, tidy and in good repair condition (based on its present condition), permits inspections by agents and prospective purchasers at all reasonable times, and makes the following payments when they fall due…”
In this consent order example, the wife is able to remain the sole occupant of the property and maintain this accommodation until such a time as she has sufficient funds to acquire a new house from the proceeds of the sale, and the husband is protected from any liabilities related to the property in order for him to be able to pay rent in his new house.
In spite of the fact that this is only an example of a consent order, it can serve as a useful template and a starting point for something that can be developed further, and can be tailored to the parties’ specific needs. It could be provided in such an order that the wife is liable for the payment of some expenses, but that the parties are jointly liable for others. There may be some cases where the husband has a considerably greater income and would like to continue paying the mortgage pending sale, so long as his children are also living in the property as well.
Whenever parties wish to write up their own consent orders without the assistance of a solicitor, financial consent order examples are usually the biggest pitfall they face. As a result of this, courts require clearness and finality in order for orders to be made, as well as default clauses to ensure that in the event that a financial separation cannot be resolved according to the parties’ preferences, that there is a “backup plan” with a very specific timeframe for taking action. This is when a property is required to be sold, and most of the time this will be ordered to be performed within a specific period of time, for example six months from the date of the order. If it is not sold within that period of time, then, as a default order, it is to be listed for auction within the next six weeks if it is not sold within that period of time. There would be an auction order stipulating the requirements of each party and any further default orders in case it does not sell at auction. Usually, the default order is that it will continue to be listed for auction until such time as the reserve price is reached and the property is finally sold.
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The material contained is property of Kate Austin Family Lawyers. It has been prepared to provide general and basic information only and does not constitute legal advice. Any material obtained on this e-book or from our website should not be relied upon as a substitute for detailed particularised advice from a qualified lawyer.
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Kate Austin Family Lawyers is a specialised boutique Family Law firm. Our head office is in the Brisbane CBD and we also have an office in the Sydney CBD. Kate Austin Family Lawyers act in all Family Law matters however we specialise in fixed fee matters for clients all over Australia
