Can My Partner Take Half Of My House?

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26/04/2023

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With the cost of living making it harder for people to live alone, more couples are choosing to formalise their relationships by moving in together sooner than they may have previously.

While this move can be financially beneficial in the short term, it raises questions from those with assets about whether their de facto status could cause them to lose part of their wealth if the relationship dissolves.

Can your partner really take half your house if the relationship does not work out? Here’s what you need to know about property settlements between de facto couples.

Is my ex automatically entitled to half of my assets?

The short answer is no, but each case is determined on a case-by-case basis. So, while you shouldn’t get ready to sell your home and hand over half the proceeds, it may be necessary for you to enter some kind of property settlement with your former spouse.

The first step is establishing whether you were in the type of relationship where a property settlement may be required, i.e. a de facto relationship.

What is a de facto relationship?

A de facto relationship typically involves two people living together in a genuine domestic relationship. Parties are not able to make a claim to each other’s property if the de facto relationship did not exist.

In deciding whether the relationship was de facto in nature, a court will consider a range of criteria including:

  • the length of the relationship;
  • whether any financial dependence or interdependence existed;
  • whether the relationship was sexual in nature;
  • whether there are any children of the relationship and the caring arrangements; and
  • whether the relationship was registered.

How are the terms of a property settlement determined?

In Australia, the Family Law Act (1975) governs this area of the law and, fundamentally, it requires the contributions of both parties to be considered before a determination is made about the division of assets. In the first instance, the parties to the relationship should try to agree on the contributions each party has made so the division of property can be made amicably. If the parties cannot agree they may need to make an application to the court for orders to be made.

When a de facto relationship breaks down or a married couple separates, there are multiple factors which are considered in order to determine who receives what after. For example, a court may decide that additional mortgage payments made by the half of the couple who is not on title should be awarded those contributions as equity in the property, which may lead the legal owner to buy out their former spouse or sell the property to raise the funds they owe.

The types of financial contributions which will be considered by the court include income from salary or wages, superannuation, investments, and any other financial resources which could have and were contributed to the relationship either by paying off an asset, other loans, day-to-day living expenses or other contributions like education or setting up a business. Non-financial contributions may also be considered, including domestic and child care, particularly in cases where one party has acted as primary carer in lieu of taking up paid work or furthering their career.

Is there a way of protecting my assets from my partner in case we separate?

It is possible to have a Binding Financial Agreement put in place at any stage of the relationship. It is important to note that each party will need to seek independent legal advice for the Agreement to be binding and the terms may change if the relationship changes significantly, for example, if children are born from the relationship.

If you would like to discuss how your personal wealth may be affected if your split from your spouse, our team of family lawyers in Cairns can assist.

At Cairns Divorce Lawyers you will always speak to a Lawyer