NSW Ex partner has not signed mortgage discharge forms despite signing BFA... what happens next?

[itr_70y]

Hi All,

My ex partner has signed the BFA but has failed to sign the mortgage discharge and the BFA states my ex would have to sign all documents before the settlement date.
The settlement is in 5 days and the discharge forms have been pending for almost 4 weeks.
What happens if my ex does not sign before the mortgage discharge before the settlement date? And how would the BFA be enforced if it was breached it?

This has been quite a stressful 2 years for me and i really just want to move on, unfortunately my solicitor is on leave.

Has anyone experienced a similar situation?

 

[lostinspace]

There should be something in there allowing an officer to sign if she refuses. But this may be part of the problem with no filing documents with the court.

If there is nothing saying she has to or that the bank can go ahead with say her solicitors signature, then you are left with the court.

Wait till solicitor back, and just get a letter to the other side so you know what the issue is.

 

[Noel Harris]

If your Binding Financial Agreement requires your ex to sign all necessary documents before settlement and they haven't signed the mortgage discharge, that's a breach of the agreement, and with settlement only days away, this needs urgent attention rather than waiting for your solicitor to return from leave. A BFA is enforced as a contract, so the usual remedies (specific performance, damages, or an urgent application to the court) are available where a party won't comply, but which is appropriate depends on the exact terms of your agreement and the settlement timeline.

Practically, your first move should be finding out immediately whether another solicitor at your existing firm can step in given the time pressure, or engaging a new solicitor on an urgent basis, since missing settlement can have its own financial consequences (penalty interest, extension costs, or the sale falling through). It's also worth having your solicitor contact your ex directly (or their solicitor, if they have one) today to put them on notice of the breach and the consequences of continued delay, which sometimes prompts quick action on its own. Getting urgent advice from a specialist in pre-nuptial agreements and BFA enforcement is the right move given the time-sensitive nature of your situation.

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Disclaimer: Please note information in this response is general in nature and should not be treated as legal advice. It may not be complete or up to date for your specific situation. Independent legal advice is always recommended.