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rental of marital home

Printed From: AussieLegal
Category: Family Law, Defacto Law
Forum Name: Divorce, Consent Orders, Binding Financial Agreements
Forum Discription:
Printed Date: 22/April/2019 at 11:08

Topic: rental of marital home
Posted By: jensliskovic
Subject: rental of marital home
Date Posted: 04/May/2018 at 09:14
I am separated and we hold a joint property (legally both names on the property title). The mortgage is in both names.

Neither of us lives now in the family home. My ex-partner wants to rent out the family home. I do not wish to, but wish to sell the home.
My partner says they have had legal advice to say that they can rent out the property and set up a lease without my consent.....

Is this true?. Can they rent out the joint property without my consent or signature? to another party. They are saying they are legally allowed to do this to cover the mortgage payments?

Posted By: emca01
Date Posted: 04/May/2018 at 18:28
Who is paying the mortgage?

Are you being reasonable... Sorry to be blunt - but there is a lot of discretionalry power in family law.. If the ex is paying the mortgage and you are not... It could be reasonable to assume that you're refusing to agree to rent the thing out just because you're having fun at the fact that you can (kinda) stop the ex renting it out just to drain the ex's funds.

So for example... If the ex did rent it out and got $500 a week. Would you want half? sure of course... Are you paying half of the mortgage and related expenses? IF NO? Hmmm

Posted By: citizen-joe
Date Posted: 04/May/2018 at 23:53
The family court favors a complete break when a marriage breaks down. This would suggest that the sale of the property is the appropriate course of action.

As this appears what you wish to do, se a solicitor for assistance to do just that, and remove this constant reminder of past mistakes.

Posted By: jensliskovic
Date Posted: 07/May/2018 at 08:39

Both parties are paying the mortgage, 50% share of that and rates and all other expenses.

Thanks for the cynicism. Trust me no one is trying the drain the funds of an ex here. Just trying to move forward and resolve if one party has any legal ability to do something with a joint asset without the consent of both parties if there is no family court order yet.

Posted By: jaazzz
Date Posted: 07/May/2018 at 23:27

When the other party says they've been told "it's legal", what they probably mean is it's not unlawful. In other words there's no law saying you can't. Greyish area..

That said, if the other party was to enter into a rental agreement with someone without your consent, & the place was left trashed or it's value reduced as a result, then you would have valid cause to hold the other joint owner financially responsible... That could only be via a court order if they refused of course..

Also worth pointing out that if the property was to be rented, the mortgagee (assuming it's financed) is supposed to be notified & your insurance amended to reflect the fact also..

The lender may want to amend the loan to an investment loan rather than a home loan

Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

Posted By: rannii
Date Posted: 10/May/2018 at 11:44
From memory, each party has the obligation to protect the assets of the property. Ie, cars to be insured etc. I remember this being explained to me.

Renting the property out, when it would otherwise be vacant - would be protecting the equity in the property and thus, not an “illegal” thing, especially if it is all done at arms length.

It’s a wise idea, as property settlement can take years, if consent orders are not reached. There is nothing stopping the house being sold whilst tenanted and in a lot of cases, it’s easier to sell a home tenanted than it is vacant.

Also, even though expenses are split,   Not allowing your ex to benefit from half of the proceeds of rent could effect you adversely as you are limiting their finances.

If for some reason your ex does require your permission to rent out the propert - they have ability to apply to the court to do so in the interim whilst matters are finalised. I do not see why any judge would not grant that request.

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