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Published: 26 July 2019
Author: Ryan Carlisle Thomas

Dividing property at divorce: What are your rights?

Legally, you are entitled to a share of property and assets during a divorce, even if everything that you “own” is in your partner’s name.

However our family and relationship lawyers are constantly surprised that people going through a separation often believe that they are not entitled to anything — whether it’s the house, the cars or other similar property — when all the assets are in the partner’s name.

While you are entitled to a property settlement that takes these possessions into account, your portion of the possession is determined by a number of factors, including what you contributed, your future needs and how long your relationship lasted.

If you and your partner owned a house together and this house was in your partner’s sole name, you may have what’s called an “equitable interest” in the house and the land. This means that while you’re not on the title, you can protect your part of the property from being sold or given away by the other party.

If you’re worried about the house being sold without your knowledge or consent, a family lawyer can lodge a legal protection with Land Vic called a “caveat” which will stop settlement from happening if you do not agree. Of course, it’s important that a caveat is lodged on a proper basis and ideally, a caveat is only a temporary solution while negotiations take place. However, it is important that you are aware that your partner can’t sell the property from under you or force you to be evicted from your own home.

Financial contributions

A determining factor in your ability to negotiate or make an Application for a property settlement is how much you contributed during the relationship.

The Family Law Courts consider financial contributions, such as going out and working, to be equal to non-financial contributions, such as staying home and raising children. Every family is different, so it’s important that you tell your solicitor details about how you contributed towards the household during your relationship.

“Negative contributions”

The Court also takes into account “negative contributions”, which are factors that decrease the value of the property. Some examples include undertaking renovations which leave the property in bad condition, damaging the property by keeping a large number of pets and hoarding.

Likewise, the Court will take significant contributions into account, such as TAC payouts or inheritances, if you used these funds towards the household, to pay off the mortgage, or to improve the property. That is to say, everything, both positive and negative it put into the picture in order to work out how much goes to whom.

Two year time limit

If you and your partner have separated and you can’t agree about how to divide the property and require the assistance of the Court to work your issues out, you have a limited amount of time to get assistance.

If you were married, you have one year from the date of divorce to apply to the Court. If you were in a de facto relationship, you have 2 years from the date that you separated.

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