Conveyancing Aspects of Family Law Matters

CONVEYANCING ASPECTS OF FAMILY LAW MATTERS Deidre Tan

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Topics 1. How does family law conveyancing differ from standard conveyancing?

2. What are the different scenarios?

3. What is the typical process?

4. What are the pitfalls to look out for?

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1. How does family law conveyancing differ from standard conveyancing?

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Standard conveyancing • Contract of sale • Parties are often not known to each other • Transfer to party not currently on title

Family Law conveyancing • Court Orders (‘CO’) or Binding Financial Agreements (‘BFA’) • Parties are known to each other • Transfer to party who may or may not currently be on title

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2. Different scenarios – so many!

Scenario

On Title

Required by CO or BFA

1 – One property

Party A & Party B

Party A to Transfer to Party B

2 – One Property

Party A & Party B

Party A & Party B to sell to Party C

3– One Property

Party A

Party A to transfer to Party B

4 - One Property

Party A

Party A to sell to Party C

Any of the above

Any combination of the above

5 – multiple properties

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3. The typical process • Within 45 days from the date of this agreement, the Husband shall do all such acts and sign all such documents as may be required to transfer to the Wife, at the expense of the Wife, all his interest in the real property known as (address) in the state of Tasmania being the whole of the land more particularly described in (title reference) • Contemporaneously with the paragraph above, the Wife will do all acts and sign all such documents necessary to cause (bank) to discharge and release the Husband from any liabilities he may have or previously have had pursuant to the Mortgage and to register a new mortgage in the sole name of the Wife; and • Pay to the Husband the amount of (x) 6

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3. The typical process If your client is the Transferor 1.

Receive, review CO/ BFA and confirm scope of your instructions a) Enforceable? i.e., CO needs to be sealed and BFA dated, signed by the parties and both Certificates of Legal advice

2.

Start searches to conduct if not otherwise provided a)

Title

b)

Land Tax (if required)

c)

Rates (if required)

3.

Organise for client’s signature on DA, Transfer once received from the Transferor

4.

Prepare VTC

5.

Attend settlement to handover Transfer, collect evidence of Discharge and settlement monies (if applicable)

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3. The typical process If your client is the Transferee 1.

2.

Receive, review CO/ BFA and confirm scope of your instructions a)

Enforceable? i.e., CO needs to be sealed and BFA dated, signed by the parties and both Certificates of Legal advice

b)

What documents have been signed with banks

c)

Information re finance

Start searches to conduct if not otherwise provided a)

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Title

b)

Land Tax (if required)

c)

Rates (if required)

Draft Documents (if acting for Transferee like with standard conveyances) a)

Discharge authority

b)

Transfer

c)

Priority Notice (if required)

d)

Transferee Transaction Certificate

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3. The typical process If your client is the Transferee 4.

Attend settlement a)

b)

c)

Outgoing Mortgagee (‘OM’) (if applicable) a)

Provide cheque for payout

b)

Receive Title, and original Discharge of Mortgage (‘DM’)and two copies of DM

Transferor a)

Receive Transfer,

b)

Provide copy of Discharge of Mortgage (if applicable)

c)

Provide settlement monies (if applicable)

Incoming Mortgagee (‘IM’)(if applicable) a)

Receive loan funds

b)

Provide original documents from OM in a) above, Transfer, copy of CO of BFA and any additional Stat decs or Application to Revert to Maiden Name (if applicable)

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3. The typical process If property was sold

Follow standard conveyancing on sale however note: a) 1/3 -2/3 cost basis b) distribution of sale proceeds in accordance with CO or BFA

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4. What are the pitfalls to look out for? a) Application to revert to maiden name b) Discharge authority c) Loan vs mortgage d) Current issues with Court Orders

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Contact details Deidre Tan, Associate, Wallace Wilkinson & Webster dtan@wwwlawyers.com.au 03 6234 8022

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