You’ve got property orders – now what?
You’ve been through the process of obtaining property orders in relation to your separation. The orders have been made and sealed by the Court — but what happens next?
Obtaining property orders is only part of the process. The orders now need to be implemented by taking the necessary steps to deal with the assets of the relationship, as set out in the orders. This might include selling or transferring property, splitting superannuation, transferring funds or closing bank accounts.
So, how is each type of asset dealt with?
Real estate
If your orders require a property to be sold or transferred from joint names into one party’s sole name, you will generally need to engage a conveyancing solicitor in the relevant jurisdiction to assist with the sale or transfer.
Selling a property
Where a property is to be sold, the orders will often set out how the sale is to be conducted. This may include provisions dealing with the appointment of a real estate agent, the listing price, the reserve price and how decisions about the sale are to be made.
Where there are clear orders in place and there is no conflict of interest, a conveyancing solicitor may be able to act for both parties in relation to the sale. Whether this is appropriate will depend on the circumstances.
Transferring a property
Where a property is to be transferred from joint names into one party’s sole name, the parties will generally need to take steps to arrange the transfer through a conveyancing solicitor.
Because of potential conflicts of interest, each party may need to engage their own conveyancing solicitor. In some circumstances, one party may be able to self-represent in relation to the transfer.
The requirements can vary depending on the circumstances and the relevant State or Territory.
We are more than happy to recommend conveyancers who can assist with the implementation of your property orders.
Superannuation
If your property orders alter the superannuation interests of the parties, this is known as a superannuation splitting order.
The trustee of the relevant superannuation fund will need to receive the documents required to give effect to the order. There are specific procedural requirements that apply to superannuation splitting orders, including requirements concerning notice to the trustee before the orders are made.
Generally, the trustee must be given at least 28 days’ notice of an application seeking a superannuation splitting order. This gives the trustee an opportunity to consider the proposed orders and notify the parties of any issues that may affect the proposed split.
Once the orders have been made, there will also be steps that need to be taken to ensure the superannuation split is implemented correctly.
Bank accounts
If your orders require funds to be transferred or joint bank accounts to be closed, both parties will need to take the necessary steps to give effect to those orders.
Depending on the bank and the circumstances, you may need to attend a branch, provide identification or sign documents to transfer funds or close an account.
It is important to check that all of the banking arrangements specified in your orders have been completed, particularly where joint accounts remain open after the property settlement.
Other assets
Property orders may also deal with a range of other assets, including vehicles, shares, personal effects and other investments or property.
The steps required will depend on the nature of the asset and what the orders require. For example, transferring a vehicle may require particular forms to be completed, while other assets may require documents to be signed or ownership records to be updated.
It is important to work through the orders carefully and make sure that each asset has been dealt with as required.
What if the other party refuses to sign?
What happens if you are ready to implement the orders, but the other party refuses to sign the documents you need?
Property orders will generally include a section 106A order under the Family Law Act 1975 (Cth). Section 106A provides a mechanism for the Court to authorise a person to execute a document on behalf of a party who has failed or refused to sign it, where the requirements of the legislation are met.
This can be particularly important where one party refuses to sign documents needed to sell or transfer property or otherwise give effect to the orders.
If the other party is refusing to cooperate with the implementation of your property orders, you should obtain legal advice before taking further steps. There may be specific documents that need to be filed with the Federal Circuit and Family Court of Australia and particular procedural requirements that need to be followed.
The orders are only the beginning
Obtaining property orders can feel like the end of a long process — but there is often still work to be done.
Making sure that the orders are properly implemented is an important final step in bringing your financial relationship to an end. Working through each asset, completing the necessary transfers and ensuring accounts and ownership records are updated can help prevent issues from arising later.
If you are unsure how to implement your property orders, or the other party is not cooperating, obtaining advice early can help you understand your options and what steps need to be taken.