Can My Former Partner Take Half My House?

Hunter Thompson

LawyerAitken PartnersView Profile

If you're worried that a former partner could claim a share of your house after separation, you're not alone. One of the most common family law questions in Australia is whether a spouse or de facto partner is entitled to "half" of your property. The reality is far more complex. In this article, we explain how property settlement works, the factors courts consider when dividing assets, and the steps you can take to protect your property and financial interests.

It’s everyone’s worst nightmare. You wake up to find that your partner has left you, and worst still, they’ve taken half of the house with them.

Then you wake up to find that it actually was just a bad dream. People generally cannot sneak off quietly in the night carrying half a building.

But past the figurative interpretation of the article title lies a common query in the area of family law – if I separate from my partner, do they get half of my property?

In Australia, dividing property is based on several factors, including whether the relationship is either a marriage or de facto, the length of the relationship, the existence of children, contributions both financial and non-financial, future needs and so on. Courts are less inclined to pull a King Solomon and just cut everything down the middle. It’s a case-by-case exercise.

What would give my partner a stake in my house?

Couples who are separating may have a legal right to a share of each other’s assets if they are either married or in a de facto relationship. A Court will determine your relationship as ‘de facto’ if you were living together on a genuine domestic basis for at least two years prior to separation, or for less time if you:

• Had children together
• Registered your de facto relationship
• Your partner made significant contributions (either financial or non-financial) to the relationship.

What are non-financial contributions?

Logically, it would follow that only the party who contributed financially to a house would retain ownership in the event of a separation. However, this doesn’t account for the potential non-financial contributions of the other party, contributions that may have enabled the legal owner of the property to work, and therefore be able to buy, renovate, and make payments on their house.

Non-financial contributions to a relationship include:

• Childcare – one party may provide the majority of care for a child of the relationship, enabling the other partner to work and earn income
• Home duties – one party may undertake the majority of the household chores, grocery shopping, cooking, cleaning, gardening etcetera
• Home improvement – one party may perform the renovation labour on the house, building, landscaping, decorating.

When one party undertakes duties similar to those above, it usually enables the other party to focus on their career and fulfil their role as the breadwinner of the relationship. Both roles are viewed as enabling the other and can result in similar rights to property. Additionally, if you have children, Courts will determine the ‘future needs’ of the primary carer of the child, which may net them a larger portion of the division of assets, including your home.

What if your partner has never lived with you?

If your partner has never lived with you on a genuine domestic basis, they will not be considered de facto and would unlikely have any claim to your property. There are two exceptions:

• You share children – your partner may be able to apply for an adjustment of property interests of your home if they can demonstrate it is necessary for the ongoing care of the children
• They have made significant contributions to your home – if they have contributed money towards home improvements or renovations, they could claim an interest in the property under general property or equity laws (like a ‘constructive trust’ claim)

What if your we co-borrowed for the mortgage of the house?

If you and your partner co-borrowed money to purchase a home and you separate, it may seem reasonable to each receive the percentage you contributed to. For example, if your partner contributed 20 percent of the purchase, are they entitled to 20 percent if you separate?

There is no standard rule or formula. A Court will assess the relationship holistically in terms of what each party has contributed financially and non-financially. The future needs of each party will also be considered in relation to their future earning capacity, age, health, and whether you share children.

It may be the case that your partner contributed 20 percent to the property but receives more because their future needs are greater than yours. They may also receive less – it’s all about the individual circumstances of the case.

How to Protect Yourself and What You Own

The simplest way to protect against exposure to a fight over property is through a Binding Financial Agreement (BFA). Commonly referred to as a ‘pre-nup’ in the movies (a BFA before marriage), BFAs help couples determine their own terms for settlement in advance of a potential separation. This provides clarity as to where each party stands and also keeps matters out of Court where the parties have less of a say in how property is settled.

BFAs can be made before, during, or after a marriage or de facto relationship. They can be made privately between parties and do not require a Court to determine their fairness. They can encompass most interests in a relationship, including real estate, vehicles, savings, business interests, and inheritances. To protect against the BFA being set aside by a Court at a later date, both sides must have independent legal advice, each lawyer must sign a legal certificate, both parties must provide full financial disclosure, and the BFA must be entered into voluntarily.

In terms of protecting your house, A BFA can outline:

• What proportions or percentages each party retains after the sale of the house
• How the mortgage and selling costs will be paid before the property is divided
• Any adjustments for unequal contributions – for example, if one party paid a greater portion of the deposit or mortgage repayments
• What happens if the property’s value changes significantly before sale
• Provisions for one party buying out the other rather than selling
• The interests generally you wish to protect in case of separation (ie. property you owned prior to the relationship commencing)

Conclusion

If you separate from your partner, it is not a given they can take half of your house. There are several factors a Court takes into consideration when dividing property, mainly whether the relationship is either a marriage or de facto, the length of the relationship, the contributions, and the existence of children. The simplest way to protect your interests is to sign a Binding Financial Agreement and include the terms of settlement that you are comfortable with. That way you can retain control over which party gets what after a separation without the need for a Court (or King Solomon) to decide for you.