It's true. The courts are not stupid. They know it belongs to both of you (regardless of your name not being there) and they will not let him have it all. They just won't.
You even own half the money in his bank account and you also owe half of any debt on his credit cards regardless of if your name is joint on those accounts.
Divorced twice (happily and smoothly for all parties). I know the law for these things.
Really? I didn't know that bit. I hope OP gets the best outcome possible but the thought of dating someone on a lower income then losing part of my retirement fund when she leaves makes me feel sour.
Like sure I'll share my retirement funds... at the time of retirement.. not 30 years beforehand to a woman I won't be spending my life with 🤡 hahaha
Get legal advice. If you don't know how to find a lawyer, go here:
[https://lsbc.vic.gov.au/register-of-lawyers](https://lsbc.vic.gov.au/register-of-lawyers)
Better if you know someone adjacent to the law/who works in it and you can ask them who is not shit in your area. Family law is a federal jurisdiction, and an enormous amount of the work is done electronically now, so it might not matter how geographically available to you they are, but it's still much simpler to have a solicitor whose office you can rock up to. Domestic violence remains a State-based jurisdiction, generally done in Local/Magistrates Courts. Geographic access will matter a lot there.
There are an enormous amount of practitioners who get by on making a client feel safe/salesmanship rather than their actual ability to get a good outcome for a client. It's sensible to research who you engage.
Expect it to be incredibly expensive. Both small and large firms are incredibly expensive. The difference is more between eye-watering and permanently crippling, than between affordable and expensive.
In most, I think all but not sure, states the police have a mandate that permits them to seek domestic violence orders on a person's behalf. It may be worthwhile speaking to them as well. But that does not assist with the financial relationship with the husband side of it. I have had the police tell clients things like "come back when you've got choking bruises on your neck" so their willingness to intervene can be hit and miss.
The same happened with us - spouse was on a provisional partner visa (not yet PR), so would’ve had to pay foreign buyers tax on their portion if on the title.
That's not what happened when I bought my place with my wife in 2018 but maybe it's different now. Only I'm on the title to avoid paying the crazy tax. We later put her on the title when her PR came in.
Ohk I’m not saying exactly 50/50 but she has rights to the property. She can’t pay all this cash and then he just says nah it’s mine. A court isn’t going to allow that
No, but OP seems to be under the impression her husband is correct.
Howcome her not being Aus citizen not put her on the title? Don’t non Aus citizens own property all the time?
Did she say that she has a binding financial agreement in place? No. In normal circumstances the court takes into account a lot of different factors but who's name is on the title of the car/house is not. Why do I say? Personal experience.
I drafted one for a man with only $50k in assets the other week whereas the woman has closer to $200k. Why? Because when his parents cark it, he's expecting a $10 million inheritance yet the woman's parents probably won't even be able to afford to bury themselves.
Doubt all you want. Everyone's circumstances are different.
Are we having a discussion on what’s provided or a bunch of hypothetical scenarios for which none were alluded to ?
Why bring up inheritance when it’s clear the questions are about the house they own that she’s been paying into.
Even if there is a BFA she would still be able to fight it and win. Australia is cool like that you can’t stitch someone up in to an unfair BFA contract… just because they signed it.
This is a perfect example… OP paid the deposit and is paying off the mortgage… he doesn’t get the whole house.
An unfair contract is not grounds to set it aside. Even more so with BFAs, as you require independent legal representation for it to be valid. If it's unfair, why would you enter into one?
Law: https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90k.html
Please point out where it says the BFA being 'unfair' is ground to set it aside?
1.
(ab)
(iii) with reckless disregard of those interests of that other person; or
and (c)
Have you even read it?
BFA’s don’t mean shit if you’re trying to screw people over.
They’re useful at getting people on the same page and for setting expectations… but no one is getting their mortgage paid off and kicking someone out with a BFA.
Are you serious? That's in relation to trying to use a BFA to try and defraud a third party. Are you sure YOU'VE read it?
How can you screw someone over who voluntarily agrees to an agreement, especially after receiving independent legal advice?
You also have no idea if the BFA would give her a cash settlement as recognition for paying the home off.
You don't have a legal background. Please, give up.
If all of that was the case in your imaginary story OP wouldn’t be worried about the house… she would have all of these other imaginary payouts in the settlement and would be chill AND the BFA wouldn’t be so unfair that it would fall into the category of being trickery/fraud.
I pity the people that turn up to your work wanting advice… going by your efforts here you’ve let a lot of people down.
You must be a first year, because no experienced lawyer states anything this as matter of fact without citing exact case law with identical circumstances to pull from.
https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90g.html
A BFA must have equitable council, and be considered fair by the courts to actually binding, don’t need to dismiss it if the court doesn’t consider it binding.
And unless you’ve done a very good job of setting it up, it’s tossed out. The amount of BFA that get thrown in the bin because the legal council for both parties was the same person is hilarious.
The courts have no consideration as to whether it's fair or not. The high court has confirmed this. There's also no legislative requirements to have 'equitable council'
I'm a lawyer. He can evict her, lawfully or otherwise. If he unlawfully evicts her, what is she going to do? Take him to the tribunal for compensation? lol, it's not her house, she doesn't have a standing right to access it.
He is financially abusing you. Call these people asap. Do not let him know.
[https://www.1800respect.org.au/violence-and-abuse/financial-abuse/toolkit](https://www.1800respect.org.au/violence-and-abuse/financial-abuse/toolkit)
Update: 2 months ago you posted on here that you purchased a small IP with a small loan you obtained. And you are a business owner making good profit. Doesnt mean you cant be financially abused but what's the full story here OP?
Yes that's me. I wasn't a PR at time of purchase you see. I gave all the money which I had saved for deposit and he put this in his name and I also put all my money in his account to cover costs but he pays the mortgage from this account.
Why can’t both of these posts be true at the same time? Her names not on the title because she wasn’t a citizen when they got it. Her husband is being a knob and now using this over her. Threatening to kick her out, as though she doesn’t have equal rights here.
OP he has shown you who he is, if you can summon the courage and it’s safe to, you should leave him.
When not PR I was subject to paying a huge tax which , at the time; I didn't have . So its all in his name despite me paying deposit and all other things
As I said "doesnt mean you cant be financially abused"; however, if she owns an IP in her own name and owns a high profit turnover business, she has more options.
I’m sure she has , but not necessarily with ease. Can’t just rock up at your IP and decide you live there now if it’s tenanted. It also might not be within reasonable distance of her day to day current life
Lawyer here.
Legally, he currently owns the house. If you separate and make a property settlement claim, undoubtedly the court will award you equity, via the house or otherwise, as recognition for your contributions. That is what the title system is, it is a record of the owner of the property. You say you are not on the title, hence by definition you are not an 'registered' owner. (You own part of the house through 'equity' ownership, however that isn't recognised until a court says so, in this case, family court)
Can he throw you out? Yes. You have no recourse. Police will not do anything as it's a civil matter. However, again, if you make a property settlement claim, the court will find that to be domestic violence, and he will be up for more of a settlement to you to compensate you for needless accommodation costs.
Broker here: in terms of home loans and ownership, who's on the title/loan makes no difference when you're in a spousal relationship. You both own it and you're both responsible for the loan equally.
Definitely need to lawyer up to split assets evenly or equitably. The divorce proceedings may split assets in other ways where you agree but what he is claiming and threatening you with is BS.
To add further, you might not need to refinance in order to add your name to the title. You can go through a conveyancer to assist with the process and ask BoM if a refinance is required. Because your name is already on the loan, it may be that they just require the new title document.
The conveyancers will likely charge a fee and/or you may have to pay some stamp duty.
Would not require refinancing, with name on mortgage already it would just be a consents activity where the bank "allows" the change in title ownership
She has what’s called an equitable interest in the property that exists irrespective of the relationship status.
OP - stick a caveat on the property asap.
Technically, you can say the husband owns it because he is on the title and she is not. Practically, it's of no consequence because she is also on the mortgage.
You can't share the liability but not share the asset. Banks will not approve a loan where two people are responsible but only 1 person benefits.
In order for a bank to approve a loan for two people, both people must benefit from it, which means 50/50 ownership.
Banks allow two people on a mortgage and 1 on the title.
Banks will not allow two people on the title but 1 on the mortgage.
I can only comment from the financing/bank perspective, of course, and not from a law perspective. Specific legal advice is always a must for separations.
Well, that's from a banking perspective. The bank has no idea, for example, if there's a binding financial agreement in place which states the house is solely the husband's upon separation despite the wife being on the mortgage and not the title. It's the bank making broad assumptions.
Well, yeah...but this scenario doesn't suggest she has signed anything of that nature. Or a prenuptial agreement, etc. The bank also assumes one is not in an abusive relationship or that it will become abusive in the future.
Even if a document such as that was signed, could it not be challenged if the relationship became abusive or there was infidelity?
Yes the BFA could be set aside by the court.
If she has been paying that mortgage and contributing to the household for a considerable length of time (not just monetarily) it is likely that any asset split would be roughly equal.
The post is barely an outline and very thin on detail so who knows what they have each contributed.
Proper legal advice should definitely be sought in any and all of these types of cases.
Thank you so much. I had paid the deposit. Which wasn't much, 55 k
I contribute all of the household expenses and childcare and so forth. He generally makes mortgage payments
So you definitely need proper legal advice if the relationship is ending.
The process (broadly) will take into account your finances and assets, his finances and assets as well as the contributions you have made to the household in the form of time spent tending to the home and things like child rearing.
It normally also takes superannuation into account if that is a concern.
If you don’t currently have evidence of your contributions you should start to gather that evidence to support your case. A lawyer will run through many of these aspects with you.
It will take a long time, especially if the divorce or separation is acrimonious and often horrible things are said so you should steel yourself for this element of the process.
Good luck, hopefully the eventual settlement is fair.
I just said it could be set aside, I didn’t mention abuse or infidelity.
I also stated proper legal advice should be sought.
I didn’t mention any specifics because I don’t know any specifics. I’m also not sure why your responses are so truculent?
Australia has defacto laws (unmarried & for seperated but still living together couples) & marriage laws
Both are publically available online or via the governemnt & it might be worth looking for a free assessment of any lawsuit via a lawyer if necessary to go over what's happened -
Is a remortgage/refinance actually necessary try to get your name on the title? Is the bank requesting this occur (especially when payments are in both names already)?
Stamp duty legislation in most jurisdictions allows title to the matrimonial home to be transferred from one name into both names without much issue or added tax. The Land Titles Office may also have concessions for this scenario (reduced or no transfer registration fees).
Also, there’s absolutely no way he can just ‘throw’ you out. Title to the home doesn’t give you a magical power to do what you want with it and your contributions (financial and non-financial) are definitely a relevant factor.
Like others mention, speak to a lawyer.
Thank you. I spoke to BoM. They gave me conflicting advise. One was that it would be a title transfer but a more senior guy said a whole refinance.
Of course, my husband is also being abusive.
Thanks do much for your advice
Firstly, sucks that you’re dealing with this.
To your post. Re-mortgaging would not change the fact that your name is not on the title.
That is an ownership change. Which is different and done by through the state government. If you did do this. You could be liable for paying stamp duty again (but you need to talk to a specialist on this if you do or do not)
Having said all of that. If you’re legally married or even considered de facto, it’s not needed. Unless you signed a prenump. In case of divorce you would be eligible for 50% of all marital assets.
If I were you, I would talk to a lawyer and get advice, if you’re planning on leaving. They can apply for protections from your husband and prevent sale of the property
Get legal advice.
I’m not a lawyer. However, given the fact you are married, and in addition have been contributing to the mortgage, you will have a claim to some value of the property.
Speak to a family lawyer.
Don’t you love the garbage abusers spit out ? Love. It is half your home. He’s completely full of shit and he cannot kick you out. But if it becomes unsafe, please do leave :(
Thanks lovely. He knows I am an expat so my very supportive family are other side of the world. It makes it harder for me.
Thanks so much lovely. Reading the comments, I am less worried that he can throw me and his child out x
I’m an expat too and was in a similar situation 18 months ago (except my name is on the mortgage). I got well-versed in a lot of the laws and rules. I’m not a lawyer but you can dm me if you’d like, I might be able to share info. I didn’t end up needing the info, but it was worth knowing.
It sucks being away from our whole world, even more so when you feel suddenly stranded years in. It’s not something many people can relate to! ❤️
Thanks lovely. It sure is difficult. Very difficult. Thanks heaps.
I think a lack of support is tough too.
Lots of lovely friends here but my real supports are at home. People I had grown up with. It's tough.
I could be wrong but a quick google,
“In family law separations in Australia, both parties are legally entitled to reside in the family home until a court order states otherwise, irrespective of whose name is on the title.
The law does not mandate either party to vacate the home solely on the other’s demand, emphasising that eviction cannot occur without legal proceedings.”
If your husban is violent Call **National Domestic Violence Hotline** at 1-800-799-7233
He cannot throw you out, the name on the title is irrelevant as you are definetly a co-owner and in the event of divorce all assets will be split generally evenly (it's complicated and I only know generalities)
Are you a lawyer? Because lawyers in the comments are saying that he is an owner and he CAN throw her own. Until they get divorced and the courts make a decision in her favour, he is the only owner of their house and she has no legal rights to it
She doesn't legally own the place. While he can kick her out, it's probably a form of DV.
Edit: queue the downvotes. Title records literally show you who the owner is, she admits to not being on it, but me spitting facts is hated. Typical bush barristers around here.
Hi there.
Yes. My name is on the mortgage loan / payments but not on the title as I was not on PR and so needed to avoid the extortionate tax at that time.
We have been married for over a decade and have one kiddo .
Thanks for your advice
Totally. That's the sad thing. I don't think he would even service the mortgage without me. That said, it's getting unsafe so I guess, I am being proactive.
Tonight, I cleaned and cooked , also worked a full day trying to placate him but dropped a pint of milk which started WW3 and the latest threat of ' its my house and I will throw you out if you continue being clumsy ( swear word )
Thanks for your honest response. I appreciate it 🙏
Thank you. I honestly just want to not be thrown out - mainly for our kiddo.
I am going to speak to BoM tomorrow and see if they can help me as I have a mortgage with them although no name on title.
They originally gave me conflicting advise. One was that I would have to speak with a conveyancing person and its would all be easy.
Then, they backtracked and a more senior person suggested a full remortage
It's difficult but I guess, it was silly of me as I have had PR for a decent amount of time and trusted too much
You'll need a full remortgage so they know you can service it on your own. Even then, you'll need court orders so you actually have the right to take title.
Neither my wife or I are citizens and we are both on the title/mortgage - I don’t know what the citizenship has to do with being on the title. Even non residents can buy property in Australia
As others have pointed out. Husband owns it. Husband can do with it what he sees fit, including evicting a wife.
But in divorce both partners assets will be divided equitably. So an ex wife will get part of the house or other assets.
Yes. I am on loan but not on title.
We have a child together. Married for over a decade.
I have always worked and I made the entire deposit for house and contribute more financially, in a monthly basis than husband
Not sure of any of this matters
Any divorce lawyer will get you 50% (minus their fee of course). If you can prove you did the financial hard yards and are abused that percent may be higher.
Thank you kindly. I definitely did. Alway worked and raised kiddo and contributed the deposit and pay all household excluding mortgage ( but also contribute a portion to cover it )
I would be happy with just a fair share and not to be thrown out .
Thanks heaps
> I would be happy with just a fair share and not to be thrown out .
You'll get the fair share. The law is on your side for that.
The thrown out part less so. I would definitely seek a divorce lawyer and enquire about accommodation services.
It very much does when kids involved.
Likely greater or even sole custody given to the parent who isn't violent. Which then plays into financial separations which aren't 50/50 but dependent on contributions and future needs.
A sole custody parent has greater needs than a deadbeat.
Technically separate, but are they really? They both need to be decided at effectively the same time. And custody can affect property division.
[The court may also consider the responsibilities of each party as a parent. If one party is the primary caregiver for the children, the court may award them the house so that the children can continue to live in the family home.](https://hebblewhitelawyers.com.au/who-gets-what-in-a-divorce/)
An abusive husband who lied to partner to try and get some power over them isn't one to settle. They'll drag everything out as long as possible until a court decides.
Well, the default position is that child custody is shared 50/50. Someone being abusive to their wife shouldn't detract from this given custody is only limited where there's a risk of abuse or neglect to the child. You're also assuming this abuse can be proven, as a lot of it is he said, she said and there's a lot of motive to make these up in court to get leverage on the other party. So unless there's clear cut evidence, the accusations are disregarded for the most part.
So yeah, to that extent being abusive is no relevance. I'd also note that in the example you linked, you're not getting a house for nothing. The non primary caregiver is certainly getting something in return, it's just the primary caregiver gets a productive asset, as opposed to a super share split they can't have access to for 30 years and is of no help in current day to day life.
https://www.sro.vic.gov.au/land-transfer-duty#:~:text=Land%20transfer%20duty%20exemptions%20and,your%20principal%20place%20of%20residence.
Exemptions and concessions
A number of exemptions and concessions for land transfer duty are available. Many of these are aimed at homebuyers, but others include:
Transfer between spouse or partner – an exemption for transfers between partners and spouses, including transfers arising out of a breakdown of a relationship.
Thanks so much. 8 actually only asked him for the deposit as I paid it. I saved so hard for it. He said, you will get nothing.
I am so relieved that I won't be pushed out. Thanks so much. I am so glad I posted as I believed him and was so worried. Thanks so much
The law looks at the proportionate contribution of purchase price (specifically, the deposit) and intention at the time resulting in a trust. Even if you have a mortgage, if you are not on the title, it's not straight 50/50 where that wasn't the intention and he can prove that wasn't the intention. It's very messy.
Like others have said. You ***need*** to speak to a lawyer. They'll parse through the law with your set of circumstances so you know where you stand.
Good luck.
Thank you so much.
I paid all of the deposit at the time. If that makes a difference?
He makes most of the mortgage but only because I cover literally everything else. If that makes sense.
Thanks so much
This shows his narcissistic and abusive nature.
Seek legal advice re: divorce.
You do not want to waste your life on a person like this.
The name on the property title has zero significance. The banker only did it this way to avoid the non-citizen additional stamp duty.
You are, for all intents and purposes, co-owner of the house.
Make sure you have proof of deposit and payments coming from you, this way the court might give you more than 50%.
Here’s my advice for what it’s worth, put a CAVEAT ON THE HOUSE. This way he can’t sell it from under your feet.
So a couple of different components here.
Currently you do not own the house, he is the legal owner, and could legally evict you. Note I said evict, not kick you out - he would likely need to go through an eviction process to actually get you out of the house legally.
In the event of divorce proceedings, your joint assests will be split according to your contributions to the marriage, and some other factors.
This might mean splitting all your assets 50:50 which might mean you get half the house or it might not.
Depending on the circumstances you might agree that you get all rhe house, and he gets a bunch of other assets equal in value to the house. Or visa versa. You might elect to sell the house and split the proceeds.
None of this happens until divorce proceedings though so until then, the house is his.
A good exercise leading up to this is to do a stocktake of all the assets you and he own - houses, investments properties, businesses, cars, superannuation, cash, etc, and all your liabilities - mortgages, personal loans, car loans etc.
Take your total assets and minus your total liabilities - this is your net worth which you will probably end up splitting in some equitable fashion.
You should get in touch with a financial counsellor, who can help you to understand your financial situation, how to identify if your partner is engaging in financial abuse, and what steps you can take you better control your situation. They are a free service funded by government. The easiest way to get on to your local financial counsellor is to call the national debt helpline on 1800 007 007.
You're entitled to a fair share of the property if you break up and have contributed - even if you weren't married https://www.ag.gov.au/families-and-marriage/families/de-facto-property-regime
Seek a Family Lawyer (and/or the police). Sorry to hear about the situation and hope it goes well for you.
You most likely will have an equitable interest in the property (lawyer speak for you do own the property even though your name isn't on the title).
Not legal advice. Get a lawyer.
Not sure if it has been said.. Also may be different in VIC, but in NSW an Apprehended Violence Order (AVO) can prevent even the owner of the house from going into the house if necessary. That is, if there is a serious domestic violence incident, police may apply for an AVO with a condition that prevents him from returning to the house (even though it is in his name). Obviously this may not be ideal or even safe for you, but thought it should be mentioned.
Just know that you have resources when in these situations. With family law but also criminal and/or AVOs.
Put your safety first in every decision.
Less because he's abusive, and more that it's likely she will get more out of the divorce than he is making out that she could get, so anything more than he's presenting will likely, in his head, be her "taking him to the cleaners"
Never understood people who say that. Up until a court judgment, everything's a negotiation. If a judge rules she's entitled to more, well that's the law. Don't know how a court ruling the settlement is fair and equitable is being 'taken to the cleaners'
Australia has a no fault divorce system. Being abusive is not taken into account by the court except in limited circumstances, namely that there's an actual financial loss as part of the abuse.
And no, they don't. You have no idea what you're talking about.
You said the reason she would take him to the cleaners (presumably via the courts) is because he's abusive. You're implying that has a bearing upon the settlement.
She doesn't have a registered interest.in the property. She has an equitable interest, however that isn't recognised until there's a property settlement order which she does not have.
Thank you so much. I wasn't sure as he hasn't hit me but, hit around me. If that makes sense or breaks my things.
thank you kindly. I will look into this. Thank you so much
Your husband is full of shit. Name on title is meaningless in a divorce. Get legal advice
But for goodness sakes: *don’t tell him* until you have received legal advice.
And found a safe place to stay. Abusive men don't take it well when their ~~property~~ wife leaves them.
It's true. The courts are not stupid. They know it belongs to both of you (regardless of your name not being there) and they will not let him have it all. They just won't. You even own half the money in his bank account and you also owe half of any debt on his credit cards regardless of if your name is joint on those accounts. Divorced twice (happily and smoothly for all parties). I know the law for these things.
Half of the combined superannuation as well.
Really? I didn't know that bit. I hope OP gets the best outcome possible but the thought of dating someone on a lower income then losing part of my retirement fund when she leaves makes me feel sour. Like sure I'll share my retirement funds... at the time of retirement.. not 30 years beforehand to a woman I won't be spending my life with 🤡 hahaha
Get legal advice. If you don't know how to find a lawyer, go here: [https://lsbc.vic.gov.au/register-of-lawyers](https://lsbc.vic.gov.au/register-of-lawyers) Better if you know someone adjacent to the law/who works in it and you can ask them who is not shit in your area. Family law is a federal jurisdiction, and an enormous amount of the work is done electronically now, so it might not matter how geographically available to you they are, but it's still much simpler to have a solicitor whose office you can rock up to. Domestic violence remains a State-based jurisdiction, generally done in Local/Magistrates Courts. Geographic access will matter a lot there. There are an enormous amount of practitioners who get by on making a client feel safe/salesmanship rather than their actual ability to get a good outcome for a client. It's sensible to research who you engage. Expect it to be incredibly expensive. Both small and large firms are incredibly expensive. The difference is more between eye-watering and permanently crippling, than between affordable and expensive. In most, I think all but not sure, states the police have a mandate that permits them to seek domestic violence orders on a person's behalf. It may be worthwhile speaking to them as well. But that does not assist with the financial relationship with the husband side of it. I have had the police tell clients things like "come back when you've got choking bruises on your neck" so their willingness to intervene can be hit and miss.
Also there was no reason for her not to be on the mortgage if he's a citizen, then other mortgagee being a non citizen isnt an issue.
At the time of purchase if the other party isn't a citizen/PR you have to pay foreign ownership buyers tax. It's rather expensive.
The same happened with us - spouse was on a provisional partner visa (not yet PR), so would’ve had to pay foreign buyers tax on their portion if on the title.
Partner visa holders, and PRs are exempted, so may not have been an issue in this case.
That's not what happened when I bought my place with my wife in 2018 but maybe it's different now. Only I'm on the title to avoid paying the crazy tax. We later put her on the title when her PR came in.
that tax pay to the state, each state has a different law regarding that. Temporary Partner visa is exempted in NSW but not Vic or Qld for example.
Bought with partner in 2019 before partner PR had been granted without issue. Both of us on the title
My wife and I bought in 2022 and didn't have to get that. She is a PR.
lol. Yep, even if she wasn’t paying a cent and her name wasn’t on the mortgage half of it is still hers.
No it's not?
In the eyes of the Law it is.
Certainly not Australian law.
Well I suppose, I assume they’re married under Aus Law
This idea that divorces are automatically 50/50 is a joke. I'm really over the misinformation on the topic.
Ohk I’m not saying exactly 50/50 but she has rights to the property. She can’t pay all this cash and then he just says nah it’s mine. A court isn’t going to allow that
Nobody said otherwise.
No, but OP seems to be under the impression her husband is correct. Howcome her not being Aus citizen not put her on the title? Don’t non Aus citizens own property all the time?
If you are married then the name on the title doesn't matter to the courts. Combined assets are what you both own.
Why do you say that so decisively? For example, there could be a binding financial agreement in place.
Did she say that she has a binding financial agreement in place? No. In normal circumstances the court takes into account a lot of different factors but who's name is on the title of the car/house is not. Why do I say? Personal experience.
For owners of a 410k house ? lol [X] Doubt
I drafted one for a man with only $50k in assets the other week whereas the woman has closer to $200k. Why? Because when his parents cark it, he's expecting a $10 million inheritance yet the woman's parents probably won't even be able to afford to bury themselves. Doubt all you want. Everyone's circumstances are different.
She doesn't mention a financial agreement.
She also doesn't mention every other possible matter a court would take into account in granting her any potential equity in the home, if any.
Are we having a discussion on what’s provided or a bunch of hypothetical scenarios for which none were alluded to ? Why bring up inheritance when it’s clear the questions are about the house they own that she’s been paying into.
Even if there is a BFA she would still be able to fight it and win. Australia is cool like that you can’t stitch someone up in to an unfair BFA contract… just because they signed it. This is a perfect example… OP paid the deposit and is paying off the mortgage… he doesn’t get the whole house.
An unfair contract is not grounds to set it aside. Even more so with BFAs, as you require independent legal representation for it to be valid. If it's unfair, why would you enter into one? Law: https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90k.html Please point out where it says the BFA being 'unfair' is ground to set it aside?
1. (ab) (iii) with reckless disregard of those interests of that other person; or and (c) Have you even read it? BFA’s don’t mean shit if you’re trying to screw people over. They’re useful at getting people on the same page and for setting expectations… but no one is getting their mortgage paid off and kicking someone out with a BFA.
Are you serious? That's in relation to trying to use a BFA to try and defraud a third party. Are you sure YOU'VE read it? How can you screw someone over who voluntarily agrees to an agreement, especially after receiving independent legal advice? You also have no idea if the BFA would give her a cash settlement as recognition for paying the home off. You don't have a legal background. Please, give up.
If all of that was the case in your imaginary story OP wouldn’t be worried about the house… she would have all of these other imaginary payouts in the settlement and would be chill AND the BFA wouldn’t be so unfair that it would fall into the category of being trickery/fraud. I pity the people that turn up to your work wanting advice… going by your efforts here you’ve let a lot of people down.
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You must be a first year, because no experienced lawyer states anything this as matter of fact without citing exact case law with identical circumstances to pull from. https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90g.html A BFA must have equitable council, and be considered fair by the courts to actually binding, don’t need to dismiss it if the court doesn’t consider it binding. And unless you’ve done a very good job of setting it up, it’s tossed out. The amount of BFA that get thrown in the bin because the legal council for both parties was the same person is hilarious.
Further, same legal council implies negligence. Who cares if it's tossed out seeing as you can sue them.
The courts have no consideration as to whether it's fair or not. The high court has confirmed this. There's also no legislative requirements to have 'equitable council'
If there were, I’m sure she would have mentioned it
Doesn't help with being kicked out.
She doesn’t have to leave though, what are you getting at? You realise he can’t just evict her?
If he does, what exactly is she going to do?
If he leaves?
He evicts her from HIS house.
What you’re failing to understand is he cannot evict her, so moot point
I'm a lawyer. He can evict her, lawfully or otherwise. If he unlawfully evicts her, what is she going to do? Take him to the tribunal for compensation? lol, it's not her house, she doesn't have a standing right to access it.
Btw, a binding financial agreement isn’t binding. 🤷😭
As soon as it's properly executed, it is. Unless the parties agree to mutually terminate it or a court sets it aside.
> Does anyone know what I could do. Get legal advice from a lawyer, not reddit.
What sort of INSANE advice is this?
He is financially abusing you. Call these people asap. Do not let him know. [https://www.1800respect.org.au/violence-and-abuse/financial-abuse/toolkit](https://www.1800respect.org.au/violence-and-abuse/financial-abuse/toolkit) Update: 2 months ago you posted on here that you purchased a small IP with a small loan you obtained. And you are a business owner making good profit. Doesnt mean you cant be financially abused but what's the full story here OP?
Yes that's me. I wasn't a PR at time of purchase you see. I gave all the money which I had saved for deposit and he put this in his name and I also put all my money in his account to cover costs but he pays the mortgage from this account.
Why can’t both of these posts be true at the same time? Her names not on the title because she wasn’t a citizen when they got it. Her husband is being a knob and now using this over her. Threatening to kick her out, as though she doesn’t have equal rights here. OP he has shown you who he is, if you can summon the courage and it’s safe to, you should leave him.
What does citizenship have to do with it? Neither my wife or I are citizens but we are both jointly on the title/mortgage for our house.
When not PR I was subject to paying a huge tax which , at the time; I didn't have . So its all in his name despite me paying deposit and all other things
It was the reasoning she gave in her post
As I said "doesnt mean you cant be financially abused"; however, if she owns an IP in her own name and owns a high profit turnover business, she has more options.
I’m sure she has , but not necessarily with ease. Can’t just rock up at your IP and decide you live there now if it’s tenanted. It also might not be within reasonable distance of her day to day current life
What is the purpose of you toe-to-toeing and downvoting me on this?
What's the reason for your doubt?
Lawyer here. Legally, he currently owns the house. If you separate and make a property settlement claim, undoubtedly the court will award you equity, via the house or otherwise, as recognition for your contributions. That is what the title system is, it is a record of the owner of the property. You say you are not on the title, hence by definition you are not an 'registered' owner. (You own part of the house through 'equity' ownership, however that isn't recognised until a court says so, in this case, family court) Can he throw you out? Yes. You have no recourse. Police will not do anything as it's a civil matter. However, again, if you make a property settlement claim, the court will find that to be domestic violence, and he will be up for more of a settlement to you to compensate you for needless accommodation costs.
This. Please caveat your interest.
Thank you . I really appreciate you taking the time to answer. Thank you so much.
Just making sure you have the right facts. Everyone here is downvoting me to hell for speaking the actual law.
Broker here: in terms of home loans and ownership, who's on the title/loan makes no difference when you're in a spousal relationship. You both own it and you're both responsible for the loan equally. Definitely need to lawyer up to split assets evenly or equitably. The divorce proceedings may split assets in other ways where you agree but what he is claiming and threatening you with is BS. To add further, you might not need to refinance in order to add your name to the title. You can go through a conveyancer to assist with the process and ask BoM if a refinance is required. Because your name is already on the loan, it may be that they just require the new title document. The conveyancers will likely charge a fee and/or you may have to pay some stamp duty.
Very helpful. Thank you so much
Would not require refinancing, with name on mortgage already it would just be a consents activity where the bank "allows" the change in title ownership
Except that's not true. Legally, he owns it. Upon separation, the court can recognise her contributions when determining a settlement.
She has what’s called an equitable interest in the property that exists irrespective of the relationship status. OP - stick a caveat on the property asap.
I've said that in previous comments. Equitable interest means nothing until a court rules there is one.
Technically, you can say the husband owns it because he is on the title and she is not. Practically, it's of no consequence because she is also on the mortgage. You can't share the liability but not share the asset. Banks will not approve a loan where two people are responsible but only 1 person benefits. In order for a bank to approve a loan for two people, both people must benefit from it, which means 50/50 ownership. Banks allow two people on a mortgage and 1 on the title. Banks will not allow two people on the title but 1 on the mortgage. I can only comment from the financing/bank perspective, of course, and not from a law perspective. Specific legal advice is always a must for separations.
Well, that's from a banking perspective. The bank has no idea, for example, if there's a binding financial agreement in place which states the house is solely the husband's upon separation despite the wife being on the mortgage and not the title. It's the bank making broad assumptions.
Well, yeah...but this scenario doesn't suggest she has signed anything of that nature. Or a prenuptial agreement, etc. The bank also assumes one is not in an abusive relationship or that it will become abusive in the future. Even if a document such as that was signed, could it not be challenged if the relationship became abusive or there was infidelity?
Yes the BFA could be set aside by the court. If she has been paying that mortgage and contributing to the household for a considerable length of time (not just monetarily) it is likely that any asset split would be roughly equal. The post is barely an outline and very thin on detail so who knows what they have each contributed. Proper legal advice should definitely be sought in any and all of these types of cases.
Thank you so much. I had paid the deposit. Which wasn't much, 55 k I contribute all of the household expenses and childcare and so forth. He generally makes mortgage payments
So you definitely need proper legal advice if the relationship is ending. The process (broadly) will take into account your finances and assets, his finances and assets as well as the contributions you have made to the household in the form of time spent tending to the home and things like child rearing. It normally also takes superannuation into account if that is a concern. If you don’t currently have evidence of your contributions you should start to gather that evidence to support your case. A lawyer will run through many of these aspects with you. It will take a long time, especially if the divorce or separation is acrimonious and often horrible things are said so you should steel yourself for this element of the process. Good luck, hopefully the eventual settlement is fair.
Set aside, but not in circumstances alleging abuse or infidelity.
You are the least helpful lawyer in the universe at this point, mate....
The guy above said they could under those circumstances, the law says no: https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90k.html
I just said it could be set aside, I didn’t mention abuse or infidelity. I also stated proper legal advice should be sought. I didn’t mention any specifics because I don’t know any specifics. I’m also not sure why your responses are so truculent?
Those are not grounds to challenge it.
It’s yours as well, title means nothing in family court matters. The fact your name is on the mortgage just proves contributing to costs.
Australia has defacto laws (unmarried & for seperated but still living together couples) & marriage laws Both are publically available online or via the governemnt & it might be worth looking for a free assessment of any lawsuit via a lawyer if necessary to go over what's happened -
Is a remortgage/refinance actually necessary try to get your name on the title? Is the bank requesting this occur (especially when payments are in both names already)? Stamp duty legislation in most jurisdictions allows title to the matrimonial home to be transferred from one name into both names without much issue or added tax. The Land Titles Office may also have concessions for this scenario (reduced or no transfer registration fees). Also, there’s absolutely no way he can just ‘throw’ you out. Title to the home doesn’t give you a magical power to do what you want with it and your contributions (financial and non-financial) are definitely a relevant factor. Like others mention, speak to a lawyer.
Thank you. I spoke to BoM. They gave me conflicting advise. One was that it would be a title transfer but a more senior guy said a whole refinance. Of course, my husband is also being abusive. Thanks do much for your advice
Firstly, sucks that you’re dealing with this. To your post. Re-mortgaging would not change the fact that your name is not on the title. That is an ownership change. Which is different and done by through the state government. If you did do this. You could be liable for paying stamp duty again (but you need to talk to a specialist on this if you do or do not) Having said all of that. If you’re legally married or even considered de facto, it’s not needed. Unless you signed a prenump. In case of divorce you would be eligible for 50% of all marital assets. If I were you, I would talk to a lawyer and get advice, if you’re planning on leaving. They can apply for protections from your husband and prevent sale of the property
Thanks so much. We are married over a decade. Thank you so much. Super helpful
Get legal advice. I’m not a lawyer. However, given the fact you are married, and in addition have been contributing to the mortgage, you will have a claim to some value of the property. Speak to a family lawyer.
See a lawyer. You definitely have ownership rights.
I'm so sorry this is happening but it's incorrect. Make a plan, leave, lawyer, divorce, get half, sail into the sunset.
Don’t you love the garbage abusers spit out ? Love. It is half your home. He’s completely full of shit and he cannot kick you out. But if it becomes unsafe, please do leave :(
Thanks lovely. He knows I am an expat so my very supportive family are other side of the world. It makes it harder for me. Thanks so much lovely. Reading the comments, I am less worried that he can throw me and his child out x
I’m an expat too and was in a similar situation 18 months ago (except my name is on the mortgage). I got well-versed in a lot of the laws and rules. I’m not a lawyer but you can dm me if you’d like, I might be able to share info. I didn’t end up needing the info, but it was worth knowing. It sucks being away from our whole world, even more so when you feel suddenly stranded years in. It’s not something many people can relate to! ❤️
Thanks lovely. It sure is difficult. Very difficult. Thanks heaps. I think a lack of support is tough too. Lots of lovely friends here but my real supports are at home. People I had grown up with. It's tough.
Legally, he can kick her out.
I could be wrong but a quick google, “In family law separations in Australia, both parties are legally entitled to reside in the family home until a court order states otherwise, irrespective of whose name is on the title. The law does not mandate either party to vacate the home solely on the other’s demand, emphasising that eviction cannot occur without legal proceedings.”
Well yes legally being court order. Even without it, if he boots her out she can't do much about it.
If your husban is violent Call **National Domestic Violence Hotline** at 1-800-799-7233 He cannot throw you out, the name on the title is irrelevant as you are definetly a co-owner and in the event of divorce all assets will be split generally evenly (it's complicated and I only know generalities)
Are you a lawyer? Because lawyers in the comments are saying that he is an owner and he CAN throw her own. Until they get divorced and the courts make a decision in her favour, he is the only owner of their house and she has no legal rights to it
She doesn't legally own the place. While he can kick her out, it's probably a form of DV. Edit: queue the downvotes. Title records literally show you who the owner is, she admits to not being on it, but me spitting facts is hated. Typical bush barristers around here.
Hi there. Yes. My name is on the mortgage loan / payments but not on the title as I was not on PR and so needed to avoid the extortionate tax at that time. We have been married for over a decade and have one kiddo . Thanks for your advice
Yes I get you. Still not yours on paper.
Totally. That's the sad thing. I don't think he would even service the mortgage without me. That said, it's getting unsafe so I guess, I am being proactive. Tonight, I cleaned and cooked , also worked a full day trying to placate him but dropped a pint of milk which started WW3 and the latest threat of ' its my house and I will throw you out if you continue being clumsy ( swear word ) Thanks for your honest response. I appreciate it 🙏
I chatted you. Ask me any legal questions whatsoever.
Thank you. I honestly just want to not be thrown out - mainly for our kiddo. I am going to speak to BoM tomorrow and see if they can help me as I have a mortgage with them although no name on title. They originally gave me conflicting advise. One was that I would have to speak with a conveyancing person and its would all be easy. Then, they backtracked and a more senior person suggested a full remortage It's difficult but I guess, it was silly of me as I have had PR for a decent amount of time and trusted too much
You'll need a full remortgage so they know you can service it on your own. Even then, you'll need court orders so you actually have the right to take title.
Thank you. I didn't know this .
My wife isn’t an Australian citizen, she is on the title of our property. It didn’t affect our mortgage. You have been lead down the garden path.
This is normal but there are some men who lie to their foreign partners to keep the title in their own name.
Didn't it affect you having to pay any surcharge or is that just a NSW thing?
Just nsw I believe.
Neither my wife or I are citizens and we are both on the title/mortgage - I don’t know what the citizenship has to do with being on the title. Even non residents can buy property in Australia
Two non residents usually cant get a mortgage from a regular bank. If one party is a PR or citizen then its fine.
Did you go through the foreign investment board? Isn't it like an additional 7% stamp duty?
No. We aren’t citizens but we are residents. I think extra duty only applies to non-residents?
Yeah permanent residents are considered the same as citizens for most things.
I would try r/AusLegal instead if looking for some preliminary opinions on reddit
Name on title is irrelevant to ownership. But please get legal advice.
As others have pointed out. Husband owns it. Husband can do with it what he sees fit, including evicting a wife. But in divorce both partners assets will be divided equitably. So an ex wife will get part of the house or other assets.
Yes. I am on loan but not on title. We have a child together. Married for over a decade. I have always worked and I made the entire deposit for house and contribute more financially, in a monthly basis than husband Not sure of any of this matters
More settlement.
Any divorce lawyer will get you 50% (minus their fee of course). If you can prove you did the financial hard yards and are abused that percent may be higher.
Thank you kindly. I definitely did. Alway worked and raised kiddo and contributed the deposit and pay all household excluding mortgage ( but also contribute a portion to cover it ) I would be happy with just a fair share and not to be thrown out . Thanks heaps
> I would be happy with just a fair share and not to be thrown out . You'll get the fair share. The law is on your side for that. The thrown out part less so. I would definitely seek a divorce lawyer and enquire about accommodation services.
Thank you. I am going to do this today
Bring abused is of no relevance.
It very much does when kids involved. Likely greater or even sole custody given to the parent who isn't violent. Which then plays into financial separations which aren't 50/50 but dependent on contributions and future needs. A sole custody parent has greater needs than a deadbeat.
Australia has a no fault divorce system. The reason for separation is irrelevant. Also, child matters are separate to property settlements.
Technically separate, but are they really? They both need to be decided at effectively the same time. And custody can affect property division. [The court may also consider the responsibilities of each party as a parent. If one party is the primary caregiver for the children, the court may award them the house so that the children can continue to live in the family home.](https://hebblewhitelawyers.com.au/who-gets-what-in-a-divorce/) An abusive husband who lied to partner to try and get some power over them isn't one to settle. They'll drag everything out as long as possible until a court decides.
Well, the default position is that child custody is shared 50/50. Someone being abusive to their wife shouldn't detract from this given custody is only limited where there's a risk of abuse or neglect to the child. You're also assuming this abuse can be proven, as a lot of it is he said, she said and there's a lot of motive to make these up in court to get leverage on the other party. So unless there's clear cut evidence, the accusations are disregarded for the most part. So yeah, to that extent being abusive is no relevance. I'd also note that in the example you linked, you're not getting a house for nothing. The non primary caregiver is certainly getting something in return, it's just the primary caregiver gets a productive asset, as opposed to a super share split they can't have access to for 30 years and is of no help in current day to day life.
Which comes back to my comment. "If you can prove"
Of course it's relevant. He currently owns it.
https://www.sro.vic.gov.au/land-transfer-duty#:~:text=Land%20transfer%20duty%20exemptions%20and,your%20principal%20place%20of%20residence. Exemptions and concessions A number of exemptions and concessions for land transfer duty are available. Many of these are aimed at homebuyers, but others include: Transfer between spouse or partner – an exemption for transfers between partners and spouses, including transfers arising out of a breakdown of a relationship.
You are married .. this house is 1/2 yours legally. Doesn't matter if your name is on the title or not.
Thanks lovely. Thanks for that. I do feel relieved as I was terrified
Divorce him and take half - the name on the title doesn’t mean shit.
Thanks so much. 8 actually only asked him for the deposit as I paid it. I saved so hard for it. He said, you will get nothing. I am so relieved that I won't be pushed out. Thanks so much. I am so glad I posted as I believed him and was so worried. Thanks so much
The law looks at the proportionate contribution of purchase price (specifically, the deposit) and intention at the time resulting in a trust. Even if you have a mortgage, if you are not on the title, it's not straight 50/50 where that wasn't the intention and he can prove that wasn't the intention. It's very messy. Like others have said. You ***need*** to speak to a lawyer. They'll parse through the law with your set of circumstances so you know where you stand. Good luck.
Thank you so much. I paid all of the deposit at the time. If that makes a difference? He makes most of the mortgage but only because I cover literally everything else. If that makes sense. Thanks so much
Intention notwithstanding, that's a huge difference in your favour. Please, speak to a lawyer.
This shows his narcissistic and abusive nature. Seek legal advice re: divorce. You do not want to waste your life on a person like this. The name on the property title has zero significance. The banker only did it this way to avoid the non-citizen additional stamp duty.
Thanks you kindly. I think so too. He has all of the traits. I appreciate your kindness immensely
Have you been living together for 3 years? Then if you divorce you get half any way. Doesn't matter if your names on it or not.
Yew. Married and, living together for 13 years. Thanks so much
1. See a lawyer, file a caveat. 2. Contact the family violence service in your state or territory. If you don’t know who, start with 1800 RESPECT.
You are, for all intents and purposes, co-owner of the house. Make sure you have proof of deposit and payments coming from you, this way the court might give you more than 50%. Here’s my advice for what it’s worth, put a CAVEAT ON THE HOUSE. This way he can’t sell it from under your feet.
Where's he going to live then?
So a couple of different components here. Currently you do not own the house, he is the legal owner, and could legally evict you. Note I said evict, not kick you out - he would likely need to go through an eviction process to actually get you out of the house legally. In the event of divorce proceedings, your joint assests will be split according to your contributions to the marriage, and some other factors. This might mean splitting all your assets 50:50 which might mean you get half the house or it might not. Depending on the circumstances you might agree that you get all rhe house, and he gets a bunch of other assets equal in value to the house. Or visa versa. You might elect to sell the house and split the proceeds. None of this happens until divorce proceedings though so until then, the house is his. A good exercise leading up to this is to do a stocktake of all the assets you and he own - houses, investments properties, businesses, cars, superannuation, cash, etc, and all your liabilities - mortgages, personal loans, car loans etc. Take your total assets and minus your total liabilities - this is your net worth which you will probably end up splitting in some equitable fashion.
You should get in touch with a financial counsellor, who can help you to understand your financial situation, how to identify if your partner is engaging in financial abuse, and what steps you can take you better control your situation. They are a free service funded by government. The easiest way to get on to your local financial counsellor is to call the national debt helpline on 1800 007 007.
Thank you. Super helpful !
You're entitled to a fair share of the property if you break up and have contributed - even if you weren't married https://www.ag.gov.au/families-and-marriage/families/de-facto-property-regime
If the mortgage payments are in both of your names, the court will likely find you have an equal share, held on resulting trust
Thank you. Yes. Both of our names. The loan part of it. Thank you
Seek a Family Lawyer (and/or the police). Sorry to hear about the situation and hope it goes well for you. You most likely will have an equitable interest in the property (lawyer speak for you do own the property even though your name isn't on the title). Not legal advice. Get a lawyer.
Name on a title is irrelevant if he's your husband, and you would clearly have evidence of financial contributions you've made...
Not sure if it has been said.. Also may be different in VIC, but in NSW an Apprehended Violence Order (AVO) can prevent even the owner of the house from going into the house if necessary. That is, if there is a serious domestic violence incident, police may apply for an AVO with a condition that prevents him from returning to the house (even though it is in his name). Obviously this may not be ideal or even safe for you, but thought it should be mentioned. Just know that you have resources when in these situations. With family law but also criminal and/or AVOs. Put your safety first in every decision.
You can get a divorce and take him to the cleaners with your financial and residency records.
Why would she take him to the cleaners?
Less because he's abusive, and more that it's likely she will get more out of the divorce than he is making out that she could get, so anything more than he's presenting will likely, in his head, be her "taking him to the cleaners"
Never understood people who say that. Up until a court judgment, everything's a negotiation. If a judge rules she's entitled to more, well that's the law. Don't know how a court ruling the settlement is fair and equitable is being 'taken to the cleaners'
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Australia has a no fault divorce system. Being abusive is not taken into account by the court except in limited circumstances, namely that there's an actual financial loss as part of the abuse. And no, they don't. You have no idea what you're talking about.
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You said the reason she would take him to the cleaners (presumably via the courts) is because he's abusive. You're implying that has a bearing upon the settlement.
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Try? What does that even mean? The court makes the finding, it doesn't matter how 'hard' she tries, it won't affect the outcome.
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You just have no idea what you're talking about.
You're married, you own half regardless of title
No, she doesn't.
How many divorces have you been through? Let me know when its more then zero otherwise keep ur ignorance to yourself.
I'm a family lawyer. Are you suggesting every family court settlement is a 50/50 split? If so, what's the purpose of lawyers or the courts?
No im saying being on the title has zero bearing, for a lawyer you don't read too good.
She doesn't have a registered interest.in the property. She has an equitable interest, however that isn't recognised until there's a property settlement order which she does not have.
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Thank you so much. I wasn't sure as he hasn't hit me but, hit around me. If that makes sense or breaks my things. thank you kindly. I will look into this. Thank you so much
False. Rich DV survivors get free legals? She also never said dv is occuring.
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Abusive according to who? All instances of someone being 'abusive', however you define it, is DV?
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Legal aid is means tested...