The drama of selling property during a divorce

Thursday 21 Jun 2018

Remember The War of the Roses? That 1989 ‘divorce’ movie starring Kathleen Turner and Michael Douglas, that was classified as a drama/comedy but should actually have been a horror film? For many couples of that era, too many elements of the film rang true as the leading couple – Barbara and Oliver Rose - transitioned from a blissfully besotted young couple to divorcing spouses filled with hatred for each other. The unforgettable climax of the film saw them hanging for dear life from a chandelier, as they continued to battle over the house, which by this point was all but destroyed from their fighting.

It would be nice to believe that a harmonious agreement could be reached between you and someone you once loved deeply and shared dreams of future with, but things can go wrong and the one thing we all should know by now is that life is full of unexpected surprises.

Selling property during a divorce can be extremely emotional and challenging. To minimise the damage and hopefully leave both parties with a reasonable result, it’s a good idea to have a plan before things go bad. In the absence of that, get good professional support that can help mediate the situation and work towards the best result for both parties.

So what kind of things could go wrong? Well first it helps to understand the definition of ‘property’. This does not just mean the house and land, but also vehicles (cars of course but also boats, caravans, motorbikes etc.), furniture, artwork and jewellery, as well as fixed assets such as shares, superannuation, investments and cash in the bank. It’s a good idea to know roughly what your joint assets are and get regular appraisals of your property throughout the marriage. The surprise ‘I’m leaving you’ announcement can happen to the best of us so having a decent knowledge of your shared financial position makes sense.

Grand Sale, Grand Sale!

During a marriage, a common dynamic is for one partner to ‘take care of’ ‘all that stuff’. This might seem like a relief at the time, but can turn out to be a disaster during a property settlement if you don’t have a solid understanding of your joint assets. There are too many horror stories of one partner rapidly liquidating as much as possible, to make sure there’s very little left to divide in the property settlement. The best way to avoid this is to keep on top of your shared financial life throughout the marriage. If it’s too late for that, try to find records or verification of shared assets and get some legal advice as soon as possible. If you recognise that shared property is being removed from the home during the divorce, there are legal orders and interventions available prohibiting asset removal. The Family Court of Australia has some helpful information on their website.

The Ceremonial Shopping Spree

Once you marry someone, they become the person you trust and share everything with and this, in many cases, means bank accounts and credit cards. You would not be the first to receive a nasty surprise in the form of a huge credit card bill, showing your ex has cleaned out the local designer boutique or taken all of their friends to the most expensive lunch in town. Cleaning out the bank account and buying gifts for every Tom, Dick and Harry they know is a common move too. Hatred can make us do wicked things, so if you have the capacity to be level headed, put some measures in place with your bank and your credit card company as soon as you get a hint that things might turn ugly, just to be sure.

The Turf Battle

The dirtiest and most painful battleground is usually the family home. The wars that can be fought here are broad reaching and seemingly endless. If there is disagreement about even separating and one partner has moved out, the other may set up a living room vigil and refuse to answer the door to anyone, including the professional that’s engaged to do the valuation as part of the divorce proceedings.

If you manage to get beyond that point, but there’s animosity over the sale, subtler tactics may be used. In some cases, they mightn’t be discovered until months later, when the house mysteriously fails to attract a buyer. Enlisting neighbours to play loud music, making sure the house is filthy or creating a narrative around how bad the house is during open inspections are commonplace in the height of a bad divorce.

Some couples enter a co-ownership agreement and/or a prenuptial agreement, at the start of their marriage, but there may be questions concerning the validity of such arrangements so, at best, they may only be regarded as what was understood or agreed at the time of the marriage. Newlyweds are much more likely to want to take care of each other in the event of a situation they never foresee happening.

Whether or not you have a co-ownership or pre-nuptial agreement, the best option is to always get excellent legal support and take the high road to determine the best way forward for you in your particular circumstances. Divorce is emotional but generally the shouting and screaming solves nothing. Trying to remember that this was someone that mattered to you may help you navigate, with some dignity, through what will possibly be one of the most difficult times of your life.