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When One Partner Owns the House: Can My Partner Take Half?

Published on February 23, 2024

    About the Author

    Mia Zitzlaff

    Mia began her career in law working at a boutique firm in Mornington, VIC as a Legal Assistant. There, she gained extensive experience in a range of family law and wills and estates matters, before becoming a lawyer in August 2022.

    Mia began her career in law working at a boutique firm in Mornington, VIC as a Legal Assistant. Ther... Read More

    Mia Zitzlaff

    Author

    Key Takeaways:

    • In Australia, property division after a relationship breakdown is governed by complex Family Law, which considers factors such as type of ownership, relationship status, and contributions by partners, not automatically entitling a partner to half the house.
    • Relationship status affects entitlements in property division, with married and de facto partners treated similarly under the law, while cohabiting partners not recognised as de facto may have different rights based on individual contributions.
    • A Binding Financial Agreement (BFA) can outline the division of assets between partners at various relationship stages and provide a way to safeguard assets, requiring legal review and independent advice for legal validity.

    If you’re in a relationship and wondering “when one partner owns the house in Australia, can my partner claim half?” Australian Family Law has specific rules around property division that take into account relationship status and contributions from each partner, along with other factors.

    In this article, our property settlement family lawyers discuss relationships, property ownership and what happens when you break up. We will outline the factors that influence whether a partner could be entitled to your property during a separation and help you to understand your options.

    Does My Partner Automatically Get Half My House?

    In Australia, it’s not a given that your partner is automatically entitled to half of your house. Australian Family Law is complex and considers a range of factors before determining property division after a relationship breakdown. These factors can include the type of ownership, relationship status, length of the relationship, the contributions each partner made during the relationship, the future needs the parties may have, and what is considered to be fair and just, as well.

    Property settlement is difficult and entirely unique to the circumstances of a relationship. That’s why factors like the contributions made by each person of the relationship and fairness play such important roles.

    While there is no assumption in Australian family law that your former partner is automatically entitled to half of your home, it is possible that they could be entitled to the equivalent of half of the property’s value and/or half of the entire property pool, which could include various assets and property like money, inheritances, and superannuation.

    When certain relationships end in Australia, like de facto relationships and marriages, the individuals of the former couple may be eligible to make a claim for a property settlement, which is a division of the assets of the couple – we will discuss more on this shortly.

    What happens when one partner owns the house in Australia?

    It’s a somewhat common belief that if one person has property ownership when they enter into a relationship, if that relationship ends, their former partner has no right to that property. The truth is, your former party doesn’t have an automatic entitlement to half of your home, but they may have the right to claim a property settlement. And the rights of each person are dependent on the type of relationship the couple have had.

    In terms of the types of relationships we’re referring to, we mean either marriages, de facto relationships, cohabitation relationships or just relationships. Below, we’ve summarised how these are categorised:

    • Marriages: Legally recognised from the date of marriage; no minimum cohabitation required for rights under the Family Law Act regarding property and children.
    • De Facto Relationships: Must have lived together on a genuine domestic basis for at least two years, unless there is a child or significant contributions to be considered in a de facto relationship. De facto relationships are treated similarly to marriages with parties having rights to make claims for property settlements.
    • Cohabitation Relationships: No specific legal timeframe; rights may depend on the relationship’s duration, nature, and formal agreements, affecting property claims and responsibilities.
    • Just Relationships: Informal, and a relationship under two years and no children; legal rights typically arise from specific contributions or agreements made between the couple, not duration.

    So, as we touched on above, whether you’re entitled to a property settlement after a breakup depends on several factors, including the nature of your relationship, its duration, and the laws applicable to your specific situation.

    In Australia, marriages and de facto relationships allow the parties involved to make claims for property settlements after separation. However, if your relationship does not qualify as a de facto relationship under Australian law or is not a marriage, the entitlement to a property settlement can be more complex.

    For relationships that are not marriages or do not qualify as de facto under Australian family law, you may not automatically be entitled to a property settlement in the same way as married or de facto couples. However, there could still be legal avenues to address property and financial matters, such as contracts and agreements between the parties regarding how their property should be treated upon separation, or common law claims where one party has benefited at the expense of another.

    Given the complexity of Australian family law and the variance in individual circumstances, it’s strongly recommended to seek legal advice from a family law specialist, such as a property settlement lawyer. They can provide guidance based on the specifics of your situation, including whether any legal mechanisms exist for a property settlement in your case.

    Understanding Property Settlement

    What exactly is a property settlement? It is the process of dividing assets and liabilities between partners after a relationship breakdown. The Family Law Act 1975 governs this process with the objective of ensuring a just division of assets. As we talked about earlier, the type of relationship matters in these cases, and the rules of a property settlement usually apply only to those who have either been married or in a de facto relationship.

    A common misconception is that a fair and just property settlement means that everything is split 50/50, but that’s not the case. The aim is to ensure that the division of assets is fair and just for the circumstances. This means that it takes a wide range of factors into consideration before deciding how the assets are split.

    Factors such as each partner’s financial and non-financial contributions, their future needs, and child caring responsibilities are key. It’s a complex process that can be daunting to navigate alone as it is different in every situation.

    If you’ve separated from your partner and you’re trying to work out who gets what is the split or what your wife is entitled to, it’s a great idea to discuss your situation with a family lawyer. It doesn’t mean that you have to use their services to actually create a property settlement agreement, but they can help you to understand all of your options and obligations, as well as the various factors that should be considered.

    When is a partner entitled to half my house?

    So, when does a partner get half of your house? The specifics of your relationship and contributions hold the answer. If both partners have made equal contributions to the joint asset pool—financial, non-financial, and as a homemaker and parent—there is a chance of a 50/50 split, potentially resulting in one partner receiving half the house.

    The length of the relationship also plays a role. If the relationship was short and there are no children involved, the Court (if the parties cannot come to an agreement together) might decide to leave each party with the assets they brought into the relationship in property settlement proceedings. However, the longer the relationship, the more likely it is that assets will be split equally, especially if there are children involved.

    However, these are only some of the factors considered. The Court also takes into account elements like:

    • each party’s age
    • health
    • other financial resources
    • the need to care for any children
    • future needs

    when determining property division.

    So, even if one partner owned the property prior to the commencement of the relationship, the other partner may still have a claim to half the family home or a share of the property if they have made significant financial or non-financial contributions. This could include paying for renovations, contributing to the mortgage repayments, or significantly maintaining and improving the property, among other things.

    Protecting Your Assets: Binding Financial Agreements

    Entering into a Binding Financial Agreement (BFA) is a consideration you can make to safeguard your assets and prevent potential disputes. BFAs provide a way for couples to agree on an asset division in advance, which can prevent financial disputes and simplify the property settlement process.

    Binding financial agreements can specify the division of all aspects of the financial relationship or concentrate on specific issues such as property settlement, spousal maintenance, and arrangements for children. A properly executed BFA provides certainty for both parties, reducing stress and the potential for costly legal proceedings if the relationship ends.

    What is a Binding Financial Agreement?

    What does a Binding Financial Agreement entail? In Australia, a binding financial agreement is a legally recognised document that outlines the allocation of assets and direct financial contributions in the event of a relationship dissolution. This agreement specifies how the partners’ assets will be divided, potentially reducing financial dependence on one another.

    BFAs can be made at various stages:

    • Before a relationship (as a pre-nuptial agreement)
    • During the relationship
    • After a relationship breakdown
    • During and after a marriage

    However, for a BFA to be legally binding, each party must receive independent legal advice, and the agreement must be reviewed regularly to account for changes in circumstances to ensure ongoing legal validity.

    While a BFA can be created and help to protect your assets, it is essential that it is understood that it is possible for it to be overturned or set aside.

    Who can help with my property settlement matter?

    The end of a relationship is difficult at the best of times. It is lifechanging in many ways and made even more difficult when trying to resolve disputes, such as how you will divide your property and assets. But you don’t have to go through it alone. At Unified Lawyers, our family lawyers Sydney and property settlement specialists are here to help you understand all of your options and to help you get the best and fairest property settlement outcome for your situation.

    Our family law services are available Australia-wide, and we offer a free no obligation consultation to ensure that you feel comfortable working with us. You can book your consultation by calling us 1800 667 461 or booking online by using the orange button below.

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