Property in a Divorce: What if it’s in my Partner’s Name?
Property is usually central to any divorce settlement. Under Australian law, the term property includes all real estate, cash, vehicles, jewellery, investments and superannuation. If you or your spouse owns a business, it too will be included in the matrimonial asset pool, as it is known. This pool includes all the property owned by you or by your partner, whether in your own names or in joint names.
It is important to realise that the courts do not follow any set formula when it comes to splitting up assets and property of a marriage. Each case is treated uniquely.
How will the court make a decision?
It will come down to your particular set of circumstances, but the judge is bound by the general principles of the Family Law Act 1975. These general principals are based on:
- Your assets versus debts, what you own and what you owe.
- The financial contributions by each party.
- The indirect financial contributions by each party, home-duties included.
- Your future requirements, taking into account factors such as age, health, and financial resources.
With regard to non-financial contributions, the law deems taking care of the family home, the children and the general wellbeing of the family to be a valuable contribution to the marriage. As such, if you have taken on the home-duties role, you are entitled to a share in all assets that are accumulated in a marriage, even if you have never worked outside the home, or don’t hold assets in your own name.
What if none of the accumulated property is actually in my name?
The courts are empowered by law to make orders against property, regardless of whose name is actually on the ownership papers. But if your marriage breaks down, you should act quickly to protect your position. If the family home is in the name of your spouse, you may need to lodge a caveat on the title of the home to stop your spouse from selling or re-mortgaging it without your consent or knowledge. It is in your best interests to consult an experienced family lawyer and contact the Land Titles Office as soon as possible if this is the case.
Do I have to go to court?
No, you do not have to go to court. It is possible for you to come to an arrangement with your spouse, but there are risks in doing so. If you formalise this agreement, it will be binding upon both of you.
If you go through the courts, then it is possible for you to ask the court to make different orders in the future.
A final word if you do have assets in your own name
If your relationship is breaking down and you are thinking about divorce, it’s important to note that attempting to hide any assets you do have solely in your own name isn’t a good idea. You are probably understandably worried about how your assets will be divided, especially if you have built up cash savings or assets.
But there is a legal duty by both parties in the family court to make a full and frank disclosure of assets and liabilities at the time of divorce proceedings. If you do not disclose a particular property (or any other asset) when the matter is before the court, you run the risk of having the settlement orders set aside at a later stage.
If you are considering divorce and would like to know where you stand and how you can protect your assets legally, or if you require representation from a family lawyer in divorce proceedings, contact us.