QLD Settling property many years after separation

[adviceseeker]

I separated from my ex more than eight years ago. We are both joint tenants on a property and both have our names on the mortgage. Only my ex has been paying the mortgage since we separated.

We previously failed to resolve property matters via legal means (once through drafting consent orders and once via drafting a binding financial agreement) - mostly due to stalling by my ex.

I am now willing for her to buy me out for a very small sum (eg $100 or possibly nothing). Basically I just want to be freed from the mortgage (and get my name off the rates bill etc) and move on with my life. She has agreed to this in principle. I would like this to finalise all property matters between ourselves.

Is a binding financial agreement still the best way to formalise this arrangement after so many years?

 

[Shanahan Law]

Yes, though both parties are required to pay legal fees with a BFA given the requirement for each party to have a certificate of independent legal advice. You could do consent orders with only one or neither of you having a lawyer, though you would also need to seek the court registrar's leave (permission) to apply out of time (assuming you are beyond the threshold time limit). That should not be too much of a problem given you still have a property together. You should also sever the joint tenancy and make it tenants in common immediately (i.e. before you finalise a BFA or consent order).

 

[adviceseeker]

Yes, though both parties are required to pay legal fees with a BFA given the requirement for each party to have a certificate of independent legal advice. You could do consent orders with only one or neither of you having a lawyer, though you would also need to seek the court registrar's leave (permission) to apply out of time (assuming you are beyond the threshold time limit). That should not be too much of a problem given you still have a property together. You should also sever the joint tenancy and make it tenants in common immediately (i.e. before you finalise a BFA or consent order).

Ok. Thank you very much for your reply. Can you tell me why it's so important to change the title to tenants in common first? As I'm planning to pretty much give away my interest in the property, concerns about the title being given to my ex if I die (before the matter is settled) seem less relevant -or is there some other important factor at play here?

We are way beyond the two year time limit for de facto couples. My only concern with the consent order approach is that it might not be considered a fair arrangement by the court (my offer is exceedingly generous) and if it was rejected it would lead to more delays.

 

[Shanahan Law]

Quite right. In my haste, I overlooked that it is your ex who will take complete ownership of the property. In that case, it is she who should sever the joint tenancy.

Regarding whether a consent order would be accepted by the court, I am unaware of all relevant information but you are right to consider that the court would scrutinise the orders to ensure they are fair and equitable in the circumstances. If you don't want to take the chance of it being rejected by the court and don't mind each party incurring the legal costs associated with a BFA that might be your preference.