Can My Ex Take Half Of My House?
Written by: Legal Team
In family law, separation and divorce are more sisters than twins. Very similar, but not quite the same.
To understand separation and divorce from a legal perspective, we first need to understand the two types of relationships in Family Law. So, what are they?
How Family Law Views Your Relationship
- Married
The first relationship, and perhaps the most easily understood, is a married couple. They have signed a legally binding marriage contract and are recognised as a married couple under the law.
- De Facto
Two people in a De Facto relationship look and act as a married couple for all intents and purposes, but they haven’t officially tied the knot. There is no marriage contract. If you have lived with your partner in a De Facto relationship for more than 24 months on a continuous basis, then you will have similar rights and responsibilities as a married couple in the eyes of Family Law.
Thinking that you fall into the De Facto category and want to know more about what they’re entitled to? Check out this previous blog we put together: What’s My De Facto Partner Entitled To?
Separation -VS- Divorce
So, now that we have a clear picture of the difference between married and de facto relationships, let’s look at how family law treats those when you separate, compared to when you divorce:
- In Family Law, separation looks a lot like what it looks like in the real world.
When two people officially ‘break up’, they are deemed to have separated. This will look like a shift from acting as a couple to acting as an individual.
You can still be living together in the same house at this time; however, you consider yourself to be separate from your partner and one of you has made it clear to the other that the relationship is over.
Separation looks different for everyone. You might open your own bank account and stop using joint finances, you might start sleeping in the spare room, or you might just start telling your friends that you’re single and move out entirely.
- Unlike separation, divorce is only relevant when you have been married. It is the official end to the marriage contract.
In Family Law, the ground for divorce is defined as the irretrievable breakdown of a relationship. Meaning that despite all the effort you have or might try to put in, it’s simply no longer working.
In order to be eligible to make a Divorce Application, you need to have been separated for 12 months. Make sure you write down the date that you separated, because your Family Lawyer will need this for your Divorce Application. Separation and Divorce are governed by the Family Law Act 1975, specifically under sections 48 and 49, if you’re interested in a bit of light reading.
Which Assets Should Be Divided When Separating?
Usually, the more contentious assets are the ones with the most value.
That could be either sentimental value or monetary value. For example, your family home or a business that you and your partner built from the ground up. In circumstances where a couple has built up an asset pool with multiple properties, complex businesses or other investments, it is advisable to speak to an experienced family lawyer.
We can help you lay out all the assets and liabilities in the asset pool, and then you can decide which assets you want the most. This will help us to make some decisions around how the assets should be divided.
For example, if it’s really important for you to keep your family home, we would then look at your ability to refinance, and we may offer your former partner an amount of money and other assets in the asset pool, in exchange for them transferring their interest in the home to you.
The opposite is also true. If your former partner wanted to keep the home, then we would consider what monetary compensation or assets you should receive in exchange for your giving up your interest in the home. Sometimes, it may be the case that neither party wants to nor has the means to retain an asset such as property. In these circumstances, the property can be sold and the proceeds divided between you.
Financial + Non-Financial Contributions In Family Law When Separating
Any monetary payment or entitlement in a separation is usually calculated by considering what financial contributions you have made at the beginning and throughout the relationship, what non-financial contributions you have made, and also the respective future needs of yourself and your former partner.
Financial contributions are more quantifiable and include the assets you have brought into the relationship. This could include things like:
- You owned a house at the beginning of the relationship and used the equity to buy your current home;
- You have paid off your partner’s loan; or
- You have received an inheritance from your grandmother’s estate.
There are numerous examples, but if it was yours and it was worth something, then it’s probably a financial contribution. Debts and liabilities introduced by either of you also form part of this concession (with the opposite effect).
Non-financial contributions are all the other things that don’t have a monetary value attached to them. This might include:
- Being the primary carer of the children;
- Conducting home duties such as cooking and cleaning;
- The hours of labour that you put into renovating your house yourself; or
- The unpaid time you spent doing behind-the-scenes work to help your partner’s business run.
Again, there are numerous more examples, but if your actions assisted in the betterment of the relationship, but were not done for financial compensation, then they might be a relevant non-financial contribution. A family lawyer can help you assess where these might be relevant.
Essential Legal Advice When Disputing Over Assets
The biggest challenge when both you and your ex want the same asset is communication.
It can be difficult to negotiate with the person you have just gone through a nasty break-up with. Tensions are high, and tempers are heated. This is where talking to a Canny Legal family lawyer will be of assistance. We will be able to negotiate with your ex or their solicitor on your behalf and help you lay out what you would like in a letter. We can even assist you with the process of attending mediation, where a third-party mediator will try and help you both reach a decision.
Rather than thinking about what you would be happy with, you will need to consider what you can live with. When there is a contentious asset that both parties want, there is going to be a lot of give and take as negotiations move forward. A good property settlement is one where, although you haven’t gotten everything that you wanted, you’re okay with the outcome for the purpose of moving on. It’s easy to want to do something badly enough, the difficult part is deciding what you are willing to give up in order to get it.
If the negotiations aren’t working, then it might be necessary to begin Court proceedings in the Federal Circuit and Family Court of Australia. This can be helpful because it ensures that the matter moves forward, but it can also mean that you are largely giving up your ability to devise what is best for you and asking the Court to decide for you (particularly if agreement cannot be reached in the early stages of the Court proceedings and the matter progresses to a Final Hearing). The challenge here is to ensure that your circumstances are effectively laid out in your Court documents so that the Court can properly understand your position when they are making a decision as to how the assets are divided. A Family Lawyer will know all the considerations that need to be addressed in your Affidavit.
Negotiating Before The Divorce Begins
You don’t need to be officially divorced to start negotiating a property settlement.
Many people believe that because they haven’t separated for twelve months, they can’t start negotiating a settlement in relation to their property and finances. This isn’t true. You can begin and even finalise a property settlement at any point after separation and before your twelve-month separation period has finished and you become eligible for a divorce.
Don’t forget about hidden assets – It’s not just the physical that matters.
One asset many people might forget that they have is their superannuation entitlements. You work every day and save towards that mystical retirement fund, but we often don’t think about the assets that are right in front of us. It is common practice in family law that parties’ superannuation entitlements (or at least the superannuation accrued by both parties during the relationship) are equalised in what is called a superannuation split. However, this amount, or the inclusion of superannuation in the asset pool at all, can be negotiated with the assistance of a family lawyer.
Want a better understanding of negotiations when heading into a divorce? Check out this previous blog we put together: Negotiating Terms of a Divorce
Canny Legal + Guidance Through Separation + Divorce
Separation and divorce can pose one of the greatest challenges and most distressing times in a person’s life.
Luckily, Canny Legal Lawyers are experts at navigating a separation. We can help you consider your asset pool and your options in dividing it. We’re also experts at drafting letters and Court documents.
Get in touch if you have separated and would like to move forward with the help of a team of empathetic and understanding family lawyers.
