When spouses separate a decision has to be made regarding the disposition of the family residence.

In the past one spouse would typically buy out the other spouse’s interest and assume the existing mortgage but as real estate prices have risen so sharply this is becoming increasingly difficult and the result is that the family residence often needs to be sold.

Spouses will hopefully be able to work together to decide which realtor to use and what price to list the house for and they will also hopefully agree to which offer to accept.

If the spouses are unable to agree on any of these things a court application may be necessary and a judge will make an order regarding the realtor to be used, the list price and/or which offer is to be accepted.

If one spouses purposely delays or hampers the sale process the other spouse may be awarded sole conduct of the sale and that spouse will be able to unilaterally make decisions regarding the realtor and the list price. An additional court application will be required to have any offer approved by the court. The court may also order that the spouse who has caused the problems pays the court costs of the other spouse.

Sometimes even after the family residence is listed and an offer is received one of the spouses will choose to “match” the offer in order to retain the family residence. This is unfortunate because when this happens the real estate commission will have to be paid to the realtor when the cost could have been avoided if the spouses could have agreed to allow one spouse to buy the house before it was listed.

Deborah Todd Family Law Victoria
Deborah A. Todd