Making a relationship work when one partner owns the property you’re living in should not be overly tricky if both sides feel secure and comfortable with the arrangement.
However, there are certain rights and responsibilities both sides should be aware of, especially in the advent of a relationship breakdown. Separation can be extremely draining for both parties and questions such as ‘can my partner take half my house’ and ‘what can I get if I’m not married’ will inevitably be asked.
Knowing where you stand and how best to resolve matters should alleviate some of the pain of the process so you can get on with the rest of your lives, and this applies to married and unmarried couples, regardless of whose name is on the mortgage.
Knowing your rights
For married couples, the law is clear regarding joint ownership or equity in the property you are living in. Even then, however, there are complications regarding who owns what share, and the situation can get a whole lot trickier for de facto couples, or those who are not married but have been living together for a certain period of time.
For those going through a divorce or separation, the division of property can be a highly emotional, draining and complicated procedure often involving solicitors, the Family Court and voluminous amounts of legal mumbo jumbo.
With regards to property settlements, you do not need to agree on a separation with your partner – if you are married or in a de facto relationship – you just need to inform your partner of your wish to separate.
If you’re unable to resolve your finances amicably, you’ll initially need to determine a division of assets including property. If you are married, you can apply for property orders from the Family Court in your state, and married partners each own a share in the equity of the property, even if the mortgage is under one party’s name. The percentage that each partner owns will depend on a range of factors (see joint registration vs sole registration below) and there is no automatic 50/50 split.
If you’re in a de facto relationship, which basically means you live together but are not married, this situation becomes more complicated, especially if you have children or you’re the guardian of the owner’s child, in which case you can apply for a property settlement with the Family Court.
A cohabitation agreement
A cohabitation agreement is a legal document that details what both partners need to do following a separation. It also can state what percentage of the property the non-mortgagee partner is entitled to.
Cohabitation agreements can also include how much each partner is expected to contribute to everything from regular mortgage repayments to insurance, upkeep, renovations and utility bills. Ideally, they also should include a notice period for the partner who isn’t the owner to move out, which can save a lot of potential rigmarole down the track.
The hardest part of a cohabitation agreement is, like a prenuptial arrangement, agreeing to one in the first place, which can be a very difficult conversation to have. The upside is that it can clarify and protect the rights and interests of both parties once that separation becomes a reality.
With unmarried couples, if there is no agreement in place from when you started living together, the non-owner partner still has some rights, depending on the length of the relationship, how long you’ve lived together, whether you have children, and how intertwined your finances are.
If the process ends up in court, you may need to prove the validity of the relationship if one partner chooses to dispute it. In these – admittedly rare – instances, you may then have to demonstrate if there was:
- a sexual relationship
- a level of financial interdependence
- a commitment to a shared life
- a view by other people that the relationship was genuine.
Any decision regarding the rights of the non-owner will also be influenced by whether they can provide evidence of a beneficial interest in the property. This means whether they contributed financial support to the property’s value, either with mortgage repayments or renovations.
You should always talk to a solicitor about your rights, especially if you have nothing set in writing, but de facto partners generally have the same rights as married couples. Both parties also have the same right to stay in the family home after separation, regardless of who actually owns it, according to the Family Law Act 1975, though the law can be complex and there are definitely grey areas concerning de facto relationships and occupancy rights.
Joint registration and sole registration
As already mentioned, the last thing you’d want to think about when moving in with your partner is what to do or who gets what if the relationship ends. Unfortunately, however, not having anything written down regarding property ownership can create problems when it’s time to divide it up.
As an aside, it should be noted that under Australian law, a marriage has no legal impact on a spouse’s ownership of property and it remains solely the ownership and management of the individual who purchased it. It is only in the case of separation that a determination needs to be made regarding who owns what.
To determine this, the Family Court uses a four-step process when reaching this decision:
- Identifying the assets and liabilities of the parties
- Assessing the financial and non-financial contributions made by each partner to decide what percentage of the property they should receive
- Assessing the future needs of each person
- Determining that the settlement is fair and just.
Additionally, the court will look at whether a property is purchased under joint registration or sole registration. If a property is purchased jointly either as a joint tenancy or tenancy in common, the division of assets on separation becomes far more straightforward than if the property is purchased by just sole registration, or by one party in a couple.
That property may have been purchased before the couple got together, or because there was not necessarily any interest in one party owning property at the time. At any rate, the onus is then on the partner who doesn’t own the property to prove that they are entitled to a share, and this can become quite murky and complicated.
Can your partner claim half your house?
In Australia, the non-mortgage holding partner could theoretically be entitled to up to half of the property rights, and potentially the right to continue staying in the property, as discussed, but this will depend on a range of factors.
Both parties need to talk to a solicitor for the best legal advice about what their rights are in this situation. You may also need to contact a solicitor if you want to sell the property and your partner doesn’t, or vice versa. In such a situation you may also need to get a property valuation, then get an order from the Family Court forcing the sale of the property.
With regards to time limits, you have two years from the date of separation to file an application of property claim with the court, and this applies to married and non-married couples. You can still lodge a claim if you miss that time limit but you’ll need to lodge an ‘out of time application’ in which you’ll have to demonstrate why you failed to lodge within those two years.
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