Can I Be Forced to Sell the Family Home?

For many separating couples, the family home is the most significant asset in the relationship. It is also often the place where one party wants to remain, particularly where children are living in the property. A common question after separation is whether one person can force the other to sell the home.

The answer depends on the circumstances of the matter, including ownership, financial circumstances and whether an agreement can be reached.

If we both own the home, can my ex force a sale?

Where a property is jointly owned, neither party can usually unilaterally sell the property without the other party's cooperation.

However, one party may apply to the Court for orders requiring the property to be sold as part of the overall property settlement.

The Court does not automatically order a sale simply because one party requests it. The Court will consider whether selling the property is necessary to achieve a just and equitable outcome between the parties.

What factors will the Court consider?

When deciding whether a property should be sold, the Court may consider factors including:

the financial circumstances of each party;
whether either party can afford to retain the property;
the needs of any children living in the home;
the ability of each party to obtain alternative accommodation;
the mortgage and other liabilities attached to the property;
whether retaining the property is realistic in the long term; and
the overall property settlement position.

The Court's focus is not simply on who wants to keep the home, but on achieving a fair outcome having regard to all of the circumstances.

Can I stay in the home until the property settlement is finalised?

Not necessarily.

If parties cannot agree about who remains living in the property, either party may apply for an order for exclusive occupation of the home.

The Court may consider matters such as:

whether the parties can continue living together;
the level of conflict between the parties;
any concerns regarding family violence or safety;
the impact on children; and
each party's ability to obtain alternative accommodation.

An order for one person to remain in the home does not determine the final property settlement. It is only an interim arrangement until the property issues are resolved.

Can one person buy out the other?

Selling the property is not the only option.

In many cases, one party may retain the home by purchasing the other party's interest. This usually involves:

determining the value of the property;
calculating the equity available;
considering any mortgage refinancing requirements; and
adjusting the overall property settlement to account for the transfer.

However, the party wishing to retain the home must be able to demonstrate that they can afford to maintain the property, including mortgage repayments and other expenses.

What if my ex refuses to sell?

If agreement cannot be reached, either party may apply to the Court for property orders.

The Court has power to make orders dealing with property, including orders requiring the sale or transfer of the family home.

However, Court proceedings can be lengthy and expensive. In many cases, parties are able to reach an agreement through negotiation, mediation or formal settlement discussions.

Key takeaway

A separation does not automatically mean the family home must be sold, nor does one party have an automatic right to remain living there permanently.

The outcome will depend on the financial circumstances of both parties, the needs of any children, and what is required to achieve a fair property settlement. Obtaining early advice can assist in understanding whether retaining the home, transferring ownership or selling the property is the most appropriate option.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our family lawyers about your specific circumstances.

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