Can My Ex-Wife or Ex-Husband claim Half My New House in Australia?

Going through the process of divorce or separation can be a complicated and emotional process for all parties involved. When couples share assets, such as a house or car, they must come to an agreement on how these assets will be divided. However, you may be asking yourself “can my ex wife or husband claim half of my new house?” Our experts here at Pullos Lawyers aim to clarify this and explain what to do in these situations, while answering other common questions related to property settlement.

 

What is Considered Property in a Divorce Settlement?

Property is the wide range of assets that the couple shares, regardless of whose name it is in. Assets that are considered as property can include:

  • The family home
  • Investment properties
  • Secondary or vacation properties
  • Vehicles
  • Bank accounts, including savings and investment accounts
  • Superannuation
  • Business interests
  • Shares
  • Family inheritances
  • Insurance policies

When separating from a partner, one party may be looking for a new place to live. However, it is important to know that the new property may fall under assets to be distributed in the divorce settlement.

 

Should I Buy A New House Before My Divorce is Finalised?

Time is an important factor to consider when wondering whether your ex wife or husband can claim half of your new home.

The decision to buy a new property before finalising your property settlement really hinges on your personal circumstances, as there's no universal solution that fits everyone.

Essentially, you should only consider purchasing a new property before your settlement is complete if you're comfortable with the idea of it potentially being included in the assets divided between you and your ex-partner. This is because if you do purchase the new house prior to the divorce, it is likely it will be considered part of the property pool.

Alternatively, you can wait to purchase a new house once the divorce is finalised.

You have 12 months from the divorce date to resolve the division of property. In this 12 month period, the couple can either:

  1. Obtain assistance with division of property from the Court through formal court proceedings, or;
  2. Resolve the division of property themselves and file an Application of Consent Orders with the Court.

Once this period has ended, any new property you buy cannot be included in the property pool.

To ensure that any new property you purchase is not at risk of being included in the property settlement, we advise consulting a family lawyer before proceeding.

 

Do I Have to Go to Court for Property Settlements?

The short answer is no, you do not always have to go to court when resolving your property settlement. But it helps to clarify who owns what, and what the agreement was.

There are three primary ways in which couples can settle property:

  1. Informal Agreements: Informal agreements can be said to be the most lax when it comes to dealing with property settlements, as they can not be enforced by a court. Therefore, if you are wondering “can my ex wife or husband claim half of my new house,” it is possible that they can if you both only completed an informal agreement.
  2. Financial Agreements: These are written documents that outline how a couple’s property or properties are to be divided between them. As these do not need to have the court’s approval, it is important for the couple to obtain legal counsel through family lawyers or property settlement lawyers. Financial agreements are also flexible in when they can be created, as they may be completed at any time during the beginning or end of your relationship.
  3. Consent Orders: As mentioned above, consent orders are to be filed with the court after the couple comes to an agreement for property settlement. Once a consent order is created, it will hold the same power as a post-hearing court order.

 

Property Settlement Considerations

When undergoing more formal proceedings for property settlement that involve the court, it is the responsibility of the court to take into account numerous factors. Under Section 79(4) of the Family Law Act of 1975, the court is legally required to take the following under consideration during property settlement proceedings.

  • The financial contributions made by each party to the property
  • The non-financial contributions made by each party to the property
  • The contributions made by each party to their relationship and/or family
  • How the property settlement could impact the financial status of either party
  • The overall health status, financial status, and age of each party
  • Whether there is child support, if any, or if there is a child in the family

This does mean that your ex-wife may be able to claim half of your new house if the court determines that they have made equal contributions to it - financial or non-financial - and that it is equitable to divide the property in this way.

Given all these considerations, it’s important to remember that adding a property to the settlement pool is just one part of the process of the distribution of assets. The court will ultimately make a determination based on the individual circumstances, which may include property, liabilities, superannuation, future needs, and more.

 

Understanding Whether Your Ex Partner is Entitled to Your New Home

To avoid having your ex wife or husband claim half of your house, seeking professional legal counsel before purchasing a new house or agreeing to a property settlement is advisable. Our team of lawyers at Pullos Lawyers understands how difficult property settlements can be and aims to provide you with a smooth settlement process. We can also assist with a number of family law issues including wills and estate planning, spousal maintenance, child support, international family law and more. We invite you to contact us today to schedule a consultation.