This article is an update of article on 18 February 2023: here
In Australia, your girlfriend is not automatically entitled to take half of your house. The law requires you to take into consideration any contributions that both of you made to the house, and any future needs either of you may have.
For example, a relationship where one person entered a relationship with a property is different from a relationship where the couple purchased a property when they were together during the relationship.
When a relationship ends, one of the most difficult issues is property settlement rights.
What happens to half your house in Australia if you and your girlfriend split up? Can my ex-girlfriend take half my house? Or does the house belong exclusively to you?
Quick Summary
- You will need to establish whether you are in a de facto relationship or not to determine whether your partner has a claim to your house.
- If you are not in a de facto relationship, then there is no claim.
- If you are in a de facto relationship – you will need to assess the contributions of each party as well as the future needs either of you may have.
- Couples may agree on a division of the assets or if an agreement cannot be reached, an application can be made to the court for a property settlement order.
Consideration
The Family Law Act of 1975 sets out several factors that the court must carefully consider before determining how assets should be divided after the breakdown of a de facto relationship. Some of these things are:
- What the parties entered the relationship with
- What the current financial position is of the parties
- The financial contributions each party made to the property
- The non-financial contributions made by each party
- The length of the relationship. For a short marriage property settlement the rules are different from a long marriage.
- Are there any children?
- Each party's age, health, and ability to earn an income.
Also read: Conciliation Conference: A Guide to Resolving Family Law Disputes
Partner Entitlement
A partner is entitled to half of the house if they can show that their contributions to the joint asset pool are equal to 50% of the value of the house.
Things like how long the relationship was, whether or not there are children and who paid for the initial deposit of the house are all important to answer this question.
Does My Partner Automatically Get Half My House?
It is important to know that there is no assumption that your partner will get half the family home.
In many cases, one partner may be entitled to half the family home, however, it's important to remember that this varies depending on the specific circumstances.
The court will consider each individual case and decide on a final determination based on the contributions made by both parties and principles of equity.
It's also important to consider all assets that are part of the asset pool. These assets may include inheritances, trusts, or family businesses. Superannuation should also be taken into consideration when determining the overall settlement.
Scenario 1
For example, let's look at these facts to see if your partner is entitled to half of the house:
- You bought a house worth 1 million dollars and have been living in it for 2 years
- Your partner moves into the house and lives there for 2 years
- You don't have any kids together
- Your partner assisted from time to time in making some payments to you and made payments to the groceries
- You separate after living together for 2 years
In this scenario, your partner would not be entitled to 50% of your house, as their contributions were very little.
Scenario 2
Let's take another set of facts and see how this would be different:
- You bought a house worth 1 million dollars and have been living in it for 2 years. You have paid $200k towards the initial purchase of the house and towards the mortgage repayments.
- Your partner moves into the house and lives there for 10 years.
- During that time, you paid an additional $200k in mortgage repayments. Your partner paid $100k in mortgage repayments.
- The value of the house has gone up to 2 million dollars
- The mortgage is now worth about $500k so the equity in the property is about $1.5m
- There are no kids
In this situation, there have been about $500k worth of payments made toward the house. Out of that, your partner has made $100k worth of payments, or about 20%.
The value of the house is $1.5m, so 20% of that is about $300k.
This is the minimum your partner may receive.
There may be other factors here to consider. Your partner potentially paid for other things, maybe the arrangement was that they pay more of the groceries and other expenses and not make payments towards the house. This could also potentially be counted for.
Couples have the option to reach an agreement on the division of assets and agree to either keep the house or sell the property and divide the profits between them.
What If One Spouse Wants the House?
If one of the parties wishes to retain the family home, other assets such as money or property may be used to compensate the other partner. However, this must be taken into account when considering the overall settlement. If one partner wishes to keep the house, there may also be a requirement to pay the other partner their proportional share in return.
In cases where the parties have signed a binding financial agreement before a marriage separation, the court may consider this when making the final determination on asset division.
In some cases, the court may allow one party to buy out the other's share and become the sole owner of the property.
- During a separation, there is no assumption that both people will get half the family home.
- Asset division between separated couples is primarily guided by the Family Law Act 1975.
- In addition to division of the family home, superannuation and other property should be taken into account when determining the final settlement.
How to Calculate Buying Someone Out of a House Australia?
Here's a breakdown of how to calculate buying someone out of a house in Australia, along with the factors and costs involved:
Key Steps:
- Get a Property Valuation: The first crucial step is determining the house's current market value. Engaging an independent valuer or experienced real estate agent provides a fair and unbiased assessment.
- Calculate Equity: Equity is the difference
between the property's value and the remaining mortgage
balance.
- Example: Property Value = $700,000, Mortgage Balance = $250,000. Equity = $450,000.
- Determine Ownership Shares: Unless agreed
otherwise beforehand, the starting point is usually a 50/50 equity
split. However, several factors can influence the final share for
each person:
- Initial contributions (deposit, stamp duty, legal fees)
- Mortgage payments made by each party
- Renovations or improvements funded by one party
- Non-financial contributions (stay-at-home parenting)
- Length of the relationship
- Future earning potential of each party
- Calculate the Buyout Price: The buyout price is determined by the departing person's equity share. Using the previous example, if a 50/50 split is agreed upon, the buyout price would be $225,000.
Important Considerations:
- Legal and Transfer Costs: Account for expenses like legal fees, stamp duty, and any additional transfer fees associated with changing ownership on the title.
- Obtain a New Loan (if needed): If you can't cover the buyout with existing funds, factor in the costs of obtaining a new mortgage or refinancing your existing one.
- Seek Professional Advice: Cases involving complex financial arrangements or disputes are best handled by a family lawyer or financial advisor. They can help you navigate the process and ensure your interests are protected.
Resources
Navigating a marriage separation can be an emotional and difficult process. At Justice Family Lawyers, we understand the complexities of ending a relationship and are here to provide support. Our team of experienced property settlement lawyers can provide advice and guidance on when a partner is entitled to half of your house during a marriage separation. We can help you understand your rights and the legal processes involved in dividing assets and property during the separation.
If you are considering a marriage separation, don't hesitate to contact us; we are here to help.
Conclusion
It is essential to seek legal guidance when tackling issues of property division in Australia. Justice Family Lawyers provide experienced professionals to help navigate complex property settlement arrangements and arrangements that are specific to any individual situation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.