“I have separated from my partner. I want to keep our jointly owned home and pay out my ex partner.
What do I need to do?”
The first step is to negotiate a property settlement agreement between you and your ex partner. It is important to reach an agreement that covers what will happen to all of your assets, liabilities and superannuation – not just your home. Your lawyer will provide you with advice about your rights and entitlements, and will correspond and negotiate on your behalf to assist in reaching an agreement.
Ask your banker or broker to work out how much you will be able to borrow. You will need to borrow enough funds to pay out the whole of any existing mortgage loan, as well as the cash amount you will be paying to your ex partner (unless you have other funds you can use for that). Part of the deal will be that your ex partner is removed from the mortgage liability and for that to occur, you will need a new loan in your sole name.
Property Settlement Document
When an agreement has been reached on the terms of your property settlement, and you are confident that you can borrow sufficient funds, your lawyer will prepare the necessary documentation for you and your ex partner to sign. The documentation may be a Binding Financial Agreement or an Application for Consent Orders, depending upon the circumstances. You won’t have to pay Stamp Duty on the transfer of the property to you if you have a valid property settlement agreement.
New Mortgage Loan Application
Once the property settlement agreement document has been fully signed (and stamped in the case of an Application for Consent Orders), give your banker a copy and you can proceed with your new mortgage loan application. Your property settlement agreement will specify a time limit, so don’t delay in providing your banker or broker with the information that he or she requests from you.
Your lawyer will commence the necessary steps to organise completion of the whole transaction. You will need to provide proof of identification and sign some further paperwork.
When everything is ready to go, your lawyer will complete the transaction via an electronic platform (PEXA). Your ex partner’s lawyer will also be involved in that transaction on behalf of your ex, as will your existing mortgage-holder, and your new mortgagee who is providing the funds. At the settlement time, the existing joint mortgage will be paid out, the property will be transferred from joint names into your sole name, the new mortgage loan will be put into place and your ex partner will be paid the agreed amount.
That is the end of the Family Law property transfer process. You will automatically start to receive land and water rates notices in your sole name soon after that.