Introduction
Q1: Can the court force a sale if my ex is delaying the property settlement?
A: The court can order a forced sale if neither party can prove they have the money to buy the other out. The decision depends on whether a sale is just and equitable after looking at both parties' contributions. Reference: Farnham [2022] FedCFamC2F 83
Q2: Does a deliberate delay in selling automatically lead to compensation?
A: The court only awards compensation if you can prove the delay had a direct and harmful financial effect on the property pool. You must show the loss was caused specifically by the other person's conduct, not by general market changes. Reference: Jepson (No 8) [2025] FedCFamC1F 146
Q3: Can I reclaim money my spouse transferred away after separation?
A: You cannot add back money that no longer exists to the asset pool, but the court can adjust the final percentage split to account for that lost value. The court treats the lost money as part of your historical contributions or current financial circumstances. Reference: Shinohara & Shinohara [2025] FedCFamC1A 126
How to prove financial waste when your ex is delaying property settlement
You must show a direct link between your ex's actions and a specific financial loss. In Australian family law, deliberately undermining a property sale is sometimes called waste or wastage. The court requires very specific evidence to compensate you for this behaviour.
The court generally expects both parties to share financial losses. An exception exists if one person acted recklessly or intentionally to reduce the value of the assets. If your ex husband is delaying property settlement by turning away buyers, you must show a clear connection between those actions and a lower sale price.
"husband's deliberate conduct which had produced a loss to the parties of the more advantageous selling price, in a clearly falling market as the decreasing offers to purchase made to the parties from 2011 demonstrates."
This quote from Mabb & Mabb [2020] FamCAFC 18, cited in Farnham [2022] FedCFamC2F 83, highlights the high bar for compensation. In Mabb & Mabb, the market was actively dropping. The husband refused several high offers. The property eventually sold for much less. The court decided his choice was so unreasonable that it caused a direct loss. Without a falling market or a definite lost sale, it is much harder to get a compensation adjustment.
The parties were married for 20 years and had four children. They reached a preliminary agreement at mediation to sell their main property for an agreed price. The husband later changed his mind and decided he wanted to keep the house. He admitted to the court that he called potential buyers and told them the house was no longer for sale. The wife argued this was a deliberate attempt to undermine the settlement.
The husband argued he had an emotional attachment to the land as a farming property. He claimed the location was convenient for him. He disputed that his actions caused any real financial loss and suggested the property was actually worth more than the experts said.
Outcome: The court decided that the husband's conduct was poor and stressful for the wife, but it did not meet the legal definition of waste. Because the potential sale contract was conditional on finance and inspections, the judge could not be certain the sale would have finished even without the husband's interference. There was not enough evidence to prove the conduct produced a specific loss.
| Comparison | Mabb & Mabb [2020] | Farnham [2022] |
|---|---|---|
| Market condition | Clearly falling market | Stable or unknown market |
| Nature of offers | High offers were refused | Conditional contract undermined |
| Evidence of loss | Direct link between refusal and lower price | No proof the conditional sale would have closed |
| Court finding | Conduct was waste | Conduct was not waste |
The decisive factor is the state of the market and the certainty of the lost sale. In Mabb & Mabb, the falling market and concrete high offers made the loss provable. In Farnham, a conditional contract left too much uncertainty.
When can the court force a property sale in a divorce property settlement?
If neither party can afford to buy the other out, the court will usually order a sale. This is a common issue in a divorce property settlement. You might want to sell to get your money, while your ex might want to stay in the home. The court does not automatically pick one side. It looks at a long list of factors to decide what is fair.
"Neither party produced evidence from a financial institution that they had pre-approval for a loan sufficient to retain the property. I am not satisfied that either party has proved that they have the financial means to take on the mortgage and pay the other party the amount due to them."
The court needs more than just a wish to keep a home. You must provide financial proof. Without a pre-approval or a clear bank statement, the judge cannot risk making an order that might fail later. This often leads to a forced sale as the only way to ensure both people get their fair share.
The court considers several factors when deciding whether a home should be sold or kept (from Farnham citing Myerthall & Myerthall [1977] FamCA 59):
- Who has lived in the house since separation?
- Are there children who need to stay near their current school?
- Can the person wanting the house actually afford the mortgage?
- Is the house close to family and friends who provide support?
- Would a sale leave one person with no place to live?
Why is it so hard to prove losses from a delayed property sale?
The court will not blame one person for a disappointing sale unless you can isolate their conduct as the specific cause. Many people worry about the property settlement after separation time limit. In Australia, you generally have one year after a divorce or two years after a de facto relationship ends to finish your property settlement. During this time, one person might act in ways that lower the value of the assets, including hiding or transferring assets.
"it is not possible, on the basis of the evidence presented in these proceedings, for me to isolate any one particular factor that resulted in the delay in the sale and the disappointing sale outcome."
A house might sell for less because the market changed, because the agent performed poorly, or because of a local issue. If the judge sees many different reasons for a bad sale, they will not blame one person. You need very strong evidence to show that only your ex's behaviour caused the loss.
The husband and wife had a long and difficult history. They married in 1998 and separated around 2011 or 2015. Their divorce was final in 2018, but they were still fighting over property in 2025. The husband claimed the wife was responsible for a loss of about $820,000 on a property sale. He said she was reckless because she spoke to a journalist and gave them negative information about him, creating bad publicity for the sale.
The wife admitted she spoke to a journalist. She disputed that this was the reason the house sold for less than expected. She pointed out that the sale was handled by professional trustees and that many other factors could have influenced the final price.
Outcome: The court decided not to give the husband compensation for the property sale. The judge found there were too many factors involved in the delay and the final price. The court could not isolate the wife's contact with the media as the single cause of the loss. However, the court did order the wife to pay $130,000 to the husband's mother because the wife had sold two cars that she did not own. The court will compensate for clear, measurable losses, but is much more careful with complex property sale values.
What should you do if your ex is delaying the property settlement?
As the cases above show, the court will only award compensation if you can produce evidence: evidence that your ex delayed, and evidence that the delay caused a specific loss. The sooner you start collecting that evidence, the more complete it will be, because chat records can be deleted and market data becomes harder to trace over time. Here are a few areas worth addressing early.
Get a loan pre-approval if you want to keep the home. The court will not let you retain the property based on a promise alone. Farnham shows that without financial proof, the court will order a sale.
Document every instance of delay. Keep records of emails, text messages, and notes of phone calls with agents or buyers. Record any time your ex refuses to cooperate with inspections, valuations, or open houses.
Prove the direct link if seeking compensation. Expert evidence about market conditions at the time of the delay is often necessary. Jepson (No 8) shows the court needs to isolate your ex's conduct as the specific cause of the loss.
Understand the new add-back rules. Lost money cannot be put back on the balance sheet. Focus your legal arguments on how the loss affects your historical contributions or current financial need. Shinohara & Shinohara confirms this approach.
