Property Settlement Options

with Melody van der Wallen, Principal Lawyer at Wallen Family Law

For many separating couples, the family home holds deep emotional and financial significance. It’s often where children have grown up and where stability feels most tangible. Understandably, one of the first questions Melody van der Wallen, Principal Lawyer at Wallen Family Law, is asked is: “Do we have to sell?”

“The short answer is no,” Melody explains. “Selling is one option, but not the only one. There are often creative and practical ways to achieve a fair property settlement without putting the family home on the market.”

Refinancing to Retain the Home

The most common alternative to selling is refinancing the property so that one person can keep it and pay out the other’s share.

“This is typically achieved by refinancing the mortgage into one person’s sole name pursuant to property Consent Orders or a Binding Financial Agreement,” Melody says. “It allows one parent to stay in the home, which can be especially important for children’s continuity and sense of security.”

To make this possible, your lawyer and mortgage broker will work together to determine:

• The value of the home

• The equity available

• The amount payable to the other party

• The borrowing capacity of the person keeping the property

“The key is affordability and fairness,” Melody adds. “The person retaining the home must be able to service the loan, and the other party must receive their agreed payout”.

Considering the Bigger Financial Picture

Melody emphasises that property settlements are about the entire asset pool, not just one property.

“We look at the whole financial picture — including superannuation, investments and liabilities — to create a balanced outcome,” she says. “Sometimes one party keeps the home while the other retains more of the cash or super. It’s all about what combination works best overall.”

This flexibility often makes it possible to preserve the home without disadvantaging the other person.

When Selling Might Still Be Necessary

There are times when selling is the most practical or fair outcome.

“If neither person can refinance, or the mortgage is too high for one income, selling might be unavoidable,” Melody explains. “But even then, there are ways to manage the sale process cooperatively.”

Parties can agree on how the sale will occur — such as choice of agent, listing price, and distribution of proceeds — and record those terms in property Consent Orders to ensure transparency.

Protecting the Home During Negotiations

If you’re still living in the property while negotiating, Melody recommends seeking early advice about injunctions or caveats to prevent any unilateral sale or refinance until a settlement is reached.

“This protects everyone’s interests and prevents rash financial decisions while emotions are running high,” she says. “The focus should be on stability and informed decision-making.”

Quick Answers

Do we have to sell the family home in a property settlement?
Not necessarily. If one party can refinance and buy out the other’s share, the home can often be retained.

Can both parties agree that one person keeps the house?
Yes. This can be formalised in Consent Orders or a Binding Financial Agreement to make the arrangement legally binding.

What if I can’t afford to keep the home?
You may need to sell or consider alternative arrangements, such as downsizing or deferring sale until a certain time.

Can the Court force a sale?
Yes, if agreement can’t be reached and the Court considers selling the fairest or most practical option.

How can I protect the property during negotiations?
Your lawyer can seek injunctions or may be able to lodge a caveat depending on your circumstances to stop any unauthorised sale, transfer or refinance while matters are unresolved.

From Melody

“For many families, the home is the anchor point. Keeping it can make emotional and practical sense — but it must also be financially realistic and fair. We work closely with clients to explore all options, from refinancing to structured settlements, so they can move forward with stability and confidence.”

– Melody van der Wallen, Principal Lawyer, Wallen Family Law