Can Ex Request Binding Financial Agreement Before Selling Home?

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WHMurphy

Well-Known Member
7 September 2016
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Hi everyone,

This is the situation.

Over 12 months ago, my wife (separated then) gave her permission to put the family home on the market, with the option of buying me out if she wanted. I listed the property for private sale and spent $500 on advertising. A week later, I receive a letter from her lawyer saying she no longer wanted to sell, but wanted to see if she can buy me out. 8 months later, she works out that she can't afford to, and again agrees to put the house on the market, after sacking her lawyer.

We list with a real estate agent who brings in a developer. He makes an offer greater than the professional valuation secured by my ex . I want to sign, but my ex is uncooperative and drags out the whole process. The real estate agent says he wants nothing more to do with her. The conveyancer says she wants us to find someone else. The developer walks.

A few weeks ago, the same developer comes back on the scene. He's still interested. The real estate agent that previously showed him through provides a waiver for any commission as he wants nothing more to do with my ex. The developer makes an offer in writing. It's the price my ex previously said she wanted. It's the best offer we've had in over a year, and above the professional valuation.

The developer and I sign and send a copy to my ex's lawyer. It's now been five days and she still hasn't signed. I spoke to her lawyer today and he said she wants to have a binding financial agreement in place before she sells. I say that I understand that it's not uncommon to sell and keep the funds in trust until such time that an agreement has been reached. No response.

The plot thickens. Another developer has made an offer $20,000.00 higher than the previous developer. I don't want to loose either of these developers as we may not get another offer close.

My questions are:

1) Is she within her rights to refuse reasonable offers for the property?
2) Can she insist on having a bindiing financial agreement in place before the property is sold?
3) If she refuses to sell the property for the reasonable offers that have been made and when she is prepared to sell, we get far less, can this be taken into account in my favour when we divide the assets?

Update: I've just received a letter from my ex's lawyer with the sales contract that she wants, including a sale price $45,000.00 above the professional valuation price.
 

Lance

Well-Known Member
31 October 2015
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123
2,394
If you think your ex will keep doing this you might want to consider getting consent orders put in place. If you haven't done so already it might be a good idea to speak with a lawyer. Your lawyer can then negotiate with her lawyer to formalise consent orders and then there will be time limits to comply with the orders.

You can find a lawyer in your area to get legal advice at: Find a Lawyer & Book Online Instantly | LawTap
 

sammy01

Well-Known Member
27 September 2015
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710
2,894
So agree to the BFA is something she can insist on. You can insist she turn purple, but doesn't mean either will happen.

Mate, there isn't much you can do. Without court orders stipulating how the thing is to be sold, she can continue being a pain.

Offer to agree to a BFA as long as the terms are reasonable. If she isn't reasonable, go to court.

One more thing? Why do you think she is being so difficult?
 

WHMurphy

Well-Known Member
7 September 2016
16
0
71
Thanks guys.

She has previously said that she can string the settlement on forever, if she wants to. The clock, however, is ticking. Our divorce came through at the end of last month, so as I understand it, there is 12 months to settle things.

She offered a ludicrously low buy-out figure. I imagine that she is hoping that I will grow tired of the whole process and give in. Also, it is part of her nature to be uncooperative.

Update: After being informed of her demands, the first developer has now said his offer terminates tomorrow.
 

Lance

Well-Known Member
31 October 2015
852
123
2,394
Sorry to hear that. Emotions run high during and after divorce so it not uncommon for one party to make it difficult for the other.

Yes, my understanding is the 12 months maximum time frame is from the date the divorce becomes absolute, that's usually when the court issues the divorce papers. About a month and a day after the Court hearing.
 

Matthew Lynch

Lawyer
LawTap Verified
18 July 2016
105
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414
Sydney
lawtap.com
The answers to your questions are 1. Yes 2. Yes 3. Yes (although it is not an exact science as to how much the court will take her delay into account - i.e. it is not necessarily the difference in price from the offers and the final sale price).

I would not put too much faith in the 12 month time window. A party can apply for leave to file after the 12 month time window has elapsed and they are likely to receive it for an asset as significant as a house (on the grounds it would create financial hardship if they could not access their share in the property). Whilst it might encourage her to settle (because no one should let the time limit elapse when they are aware of it) it is not guaranteed.

Secondly, if the house is in joint names then the 12 month time window applies to you as well if you want to force the sale of the property in the event she keeps delaying by applying to the FCCA or Family Court. This will result in extra time and legal costs if you have to seek leave from the Court to file out of time to force the sale of the property.

If the property is solely in your name then you still have to deal with the issue in my first paragraph.

You should file an application in Court. You can still settle after that point.