Where the Federal Circuit Court or Family Court has made orders in relation to the division of property, it is expected that those orders will be complied with by each party and any other parties to the matter.
In most cases relating to property, depending on whether the parties file an Application for Consent Orders, or whether the matter needs to be litigated, the common orders in relation to dealing with the former matrimonial home are as follows:
- An order seeking the sale of the former matrimonial home; or
- An order transferring the former matrimonial home into the sole name of one of the parties, which may require one party to ‘buy’ the other party out.
Most orders will also have a ‘fallback’ provision which will provide for the sale of the property if one party is not able to obtain the necessary refinance in order to transfer the property into their sole name.
However, at JB Solicitors, we are well aware that one party may take steps that will either hinder the sale process or do things that will prevent real estate agents from being able to market the property. In these situations, you may be able to take recourse from the courts from that party’s behaviour. One of the options available to you is known as a Contravention Application. This application is only able to be made where there are already Court Orders in place and is effectively an application to bring to the Court’s attention that another party is not following the Court Orders.
This article only deals with contravention applications related to property.
The type of relief that will be granted by the Court is dependant on the nature of the breach. For example, a Court may make the following orders in order to effect the sale of a property:
- Forcing one party to sign a contract;
- Forcing one party to accept an offer put forward by a prospective purchaser; or
- Allowing one party to act as trustee on the sale – this means that one party is able to do or sign things on behalf of or in place of the other party.
In some cases, a contravention application may not be necessary and certain issues relating to compliance with order may easily be overcome with proper negotiation and discussion between the parties. Furthermore, in cases where you are seeking to enforce a particular order, you may want to consider filing an ‘Enforcement Application’. For more information on enforcement applications, click here.
A court may also award that the defaulting party pay your legal costs, providing you with additional relief in having to bring the matter back to the Court after final property orders have been made.
How can we help?
We recommend that you seek legal advice prior to lodging a contravention application to ensure that it is appropriate in the circumstances of your case. Please do not hesitate to contact the experienced team at JB Solicitors and we will be more than happy to assist you.